1415696 (Migration)

1415696 (Migration) [2015] AATA 3709 (18 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs ANITA RAMDOOHARIKA
Mr BIPENDRANATH RAJKOOMAR
Miss GAVESHNAA SANDOORAM
CASE NUMBER:  1415696
DIBP REFERENCE(S):  BCC2014/953162
MEMBER:Dione Dimitriadis
DATE:18 November 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the first and second named applicants Regional Employer Nomination (Permanent) (Class RN) visas.
The Tribunal does not have jurisdiction in the matter of the third named applicant.

Statement made on 18 November 2015 at 1:01pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions 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 9 April 2014. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.
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 Welfare Worker. This stream is designed for persons who have never, or have only briefly, worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.
The delegate refused to grant the visas because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations because at the time of application, the applicant did not hold the qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation and she was not in a class of persons who are exempt from having to meet that requirement or a person whose occupation is specified by the Minister in an instrument in writing and required a skills assessment.
The applicant appeared before the Tribunal on 17 November 2015 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the visa application, the applicant stated that the highest recognised qualification obtained by her is a Diploma of Community Welfare Work. The applicant provided details of her employment which included the following:
·From June 2010 to January 2012 the applicant worked as a Disability Support Worker at Scope Victoria;
·From June 2011 to November 2011, the applicant worked as a Personal Care Attendant with Cabrini Health;
·From June 2011 to November 2011 the applicant worked as a Community Support Worker with Southern Cross Care;
·From April 2012 to August 2012, the applicant worked as a Community Service Worker with Lifestyle Solutions;
·From 20 July 2012 to April 2014, the applicant worked as a Youth Worker – Welfare Worker with Itec Health – Safe Pathways.
On 20 May 2014 the Department wrote to the applicant and requested that she provide additional information or documents.
The Department received an undated letter from the applicant who stated that she does not have a degree to work as a Welfare Worker. The applicant asked the Department to consider her experiences in working with people in the community and young people. The applicant stated that although it has not been five years, she asked that she be given an opportunity to improve herself and achieve her career.
On 12 September 2014 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.187.234 and therefore did not satisfy the criteria in the Direct Entry stream. The delegate found that the applicant did not meet the criteria in the Temporary Residence Transition stream or the Agreement stream.
At the time of lodging the application for review, the applicant provided a copy of the delegate’s decision record.
Jurisdiction
The delegate informed the applicant in the decision record that the decision refusing the visa to the third named applicant was not reviewable. However the third named applicant is named as an applicant in the application for review which was lodged at the Tribunal on 18 September 2014. The Tribunal finds that the third named applicant does not have standing to apply for review for the following reasons.
The third named applicant was outside Australia at time of application and was outside Australia at the time the decision was made to refuse the visa. The third named applicant was outside Australia at the time the application for review was lodged. The applicant stated at the hearing that the third named applicant had never been to Australia.
Because the third named applicant was outside Australia at time of application and she applied for a permanent visa, she is covered by s.338(7A) of the Act which provides:
338(7A)
A decision to refuse to grant a non-citizen a permanent visa is a Part 5-reviewable decision if:
(a) the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and
(b) the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.
Section 347(2) relevantly provides that an application for review may only be made by, if the Part 5 - reviewable decision is covered by s.338(7A), the non-citizen who is the subject of the decision.
Section 347(3A) provides that if the Part 5 - reviewable decision was covered by s.338(7A), an application for review may only be made by a non-citizen who was physically present in the migration zone at the time when the decision was made; and is physically present in the migration zone when the application for review is made.
As the third named applicant was not present in the migration zone at the time when the decision was made; and was not physically present in the migration zone when the application for review was made, the third named applicant does not have standing to apply for review.
The Tribunal finds that it does not have jurisdiction in the matter of the third named applicant.
The issue in the present case is whether the applicant meets cl.187.234.
Skills and qualifications
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.
For this criterion, the relevant classes of exempt persons have been specified in IMMI 12/060, and the occupations and relevant assessing authorities have been specified in IMMI12/096. For the skills assessment, if the visa application was made on or after 28 October 2013, the assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.
Exempt class of persons
The Minister has specified classes of persons that are exempt from the requirement of having a skills assessment and employment in the occupation for the purposes of cl.187.234(a) in IMMI 12/060 under the headings Class 2 and Class 3. The Minister has also specified persons under the heading Class 1 but this class does not apply to Subclass 187 visas and is not relevant to this case.
The specified classes of persons are as follows:
Class 2
Persons who are nominated for a visa under the Regulations for a position where their nominated earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate.
Class 3
Persons who are currently in Australia as the holder of a subclass 444 or 461 visa and have been working with their nominating employer in their nominated occupation for at least two years (excluding any periods of unpaid leave) in the last three years immediately before making their visa application.
According to the contract of employment sent to the applicant by Safe Pathways, the applicant’s base salary will be $53,900 gross per annum. The applicant stated at the hearing that her annual income is $53,900. She confirmed that her pay would not be $180,001. Subregulation 2.57A(1) of the Regulations defines earnings to include the person’s wages, and amounts applied or dealt with in any way on the person’s behalf or as the person directs, and the agreed money value of non-monetary benefits. Based on this evidence, the Tribunal finds that the applicant’s wages and other amounts and agreed money value of non-monetary benefits do not amount to $180,001, which is the current Australian Tax Office top individual income tax rate. The applicant is therefore not a person in Class 2.
When the applicant made the application for the visa the subject of this review, she was not the holder of a Subclass 444 or 461 visa. The applicant gave evidence at the hearing that she had never held a Subclass 444 or Subclass 461 visa. The applicant stated that she held a Subclass 457 visa at the time she applied for a Subclass 187 visa. As the applicant was not the holder of a Subclass 444 or 461 visa, she is not a person in Class 3.
The Tribunal therefore finds that cl.187.234(a) does not apply.
Skills assessment
It is a requirement that the applicant’s skills had been assessed as suitable for the occupation if the applicant’s occupation is specified in the relevant instrument and the applicant obtained the necessary qualifications overseas. The occupation of Welfare Worker is not specified by the Minister for the purposes of cl.187.234(b). The Tribunal therefore finds that cl.187.234(b) does not apply.
Qualifications held
As neither cl.187.234(a) or (b) apply, the Tribunal will consider whether the applicant has the qualifications listed in ANZSCO as being necessary to perform the occupation of Welfare Worker.
According to ANZSCO, the occupation of Welfare Worker (ANZSCO code 272613) has Skill Level 1. The occupation of Welfare Worker comes under the Unit Group of Welfare, Recreation and Community Arts Workers (2726) and states that most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
The qualifications listed in ANZSCO as being necessary to perform the tasks of a Welfare Worker are a bachelor degree or higher qualification or at least five years of relevant experience may substitute for the formal qualifications. Although it is not explicitly stated, the Tribunal is of the view that the qualifications set out above must be in the field of study relevant to the occupation as ‘skill level’ in ANZSCO reflects the level of skill required to competently perform the set of tasks required for that occupation.[1] This view is supported by the requirement in cl.187.234(c) that the applicant has the qualifications listed as being necessary to perform the tasks of the occupation.
[1] Refer to ANZSCO, the Australian and New Zealand Standard Classification of Occupations First Edition Revision 1 entitled “Conceptual Basis of ANZSCO”, under the subheading of The concept of skill level.
The applicant stated at the hearing that she does not have a bachelor degree or higher qualification. The highest qualification she has is a Diploma of Community Welfare Work. The Tribunal is satisfied that the applicant does not have a bachelor degree or higher qualification.
The reference in ANZSCO to five years experience as an alternative to the requirement for qualifications refers to “relevant experience”. At the hearing the applicant stated that she worked as a Disability Support Worker at Scope Victoria for about a year and she was casual for about eight months. She worked as a Community Support Worker with aged people part-time from June 2011 to November 2011. The applicant then worked with Lifestyle Solutions as a Community Service Worker part-time for three months and full-time for one month and she worked with disabled people. In 2011, the applicant worked as a Personal Care Attendant with Cabrini Health for about two to three months part-time. From July 2012 to April 2014, the applicant worked as a Youth Worker on a casual basis with Itec Health – Safe Pathways but then she got a full-time contract. The applicant gave evidence that she does not have five years of relevant experience.
The Tribunal has had regard to the applicant’s work experience listed in the visa application and the evidence of the applicant that she does not have five years of relevant experience. The Tribunal finds that the applicant does not have five years of relevant experience which may substitute for the formal qualifications.
Accordingly, the applicant does not have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation and she therefore does not meet the requirements of cl.187.234(c).
Therefore, cl.187.234 is not met.
The applicant gave evidence that she applied for another Subclass 187 visa in October 2015.
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 must be affirmed.
The second named applicant does not satisfy cl.187.311 because he is not a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa and made a combined application with the primary applicant.
DECISION
The Tribunal affirms the decisions not to grant the first and second named applicants Regional Employer Nomination (Permanent) (Class RN) visas.
The Tribunal does not have jurisdiction in the matter of the third named applicant.
Dione Dimitriadis
Member

ATTACHMENT: CLAUSE 187.234 AND ANZSCO EXTRACT
187.234
At the time of application:
(a) the applicant was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph; or
(b) if:
(i) the applicant’s occupation is specified by the Minister in an instrument in writing for this subparagraph; and
(ii) the applicant did not obtain the necessary qualification in Australia;
the applicant’s skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph (i) as the assessing authority for the occupation; or
(c) if neither paragraph (a) nor (b) applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.
1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2
Latest ISSUE Released at 11:30 AM (CANBERRA TIME) 26/06/2013
UNIT GROUP 2726 WELFARE, RECREATION AND COMMUNITY ARTS WORKERS

WELFARE, RECREATION AND COMMUNITY ARTS WORKERS design and implement strategies and programs to meet community and individual needs and assist individuals, families and groups with social, emotional and financial difficulties to improve quality of life by educating and supporting them and working towards change in their social environment.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
oresearching and analysing community issues, needs and problems
odeveloping, evaluating and maintaining community resources and programs
oevaluating data and writing reports such as submissions requesting funding for continuing programs and new projects
oidentifying issues of local need, concerns and aspirations through community consultation
oorganising local sporting, cultural and recreational events and activities such as community functions, hobby classes, community arts projects and sporting competitions
oproviding support while exploring alternatives with clients who experience difficulties such as marital problems, unemployment, illness and drug abuse
oassessing risks and providing intensive short-term crisis counselling for victims of domestic violence, child abuse, disasters and other crises
oassisting to establish and administer neighbourhood houses, community groups, employment training programs and other services

Occupations:
272611 Community Arts Worker
272612 Recreation Officer (Aus) / Recreation Coordinator (NZ)
272613 Welfare Worker

....

272613 WELFARE WORKER

Alternative Title:
Welfare Case Worker

Assists individuals, families and groups with social, emotional or financial difficulties to improve quality of life, by educating and supporting them and working towards change in their social environment.
Skill Level: 1

[2015] AATA 3709

18 November 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Jurisdiction

Standing

Procedural Fairness

Judicial Review