1418350 (Migration)

[2015] AATA 3485

1418350 (Migration) [2015] AATA 3485 (19 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Victoria Grove

CASE NUMBER:  1418350

DIBP REFERENCE(S):  BCC2014/379871

MEMBER:Rania Skaros

DATE:19 October 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.234 of Schedule 2 to the Regulations.

Statement made on 19 October 2015 at 12:15pm

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 Immigration to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 10 February 2014. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. 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.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Massage Therapist - 411611. 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.

5. The delegate refused to grant the visa because the applicant did not meet cl.187 234 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had the qualifications listed in the ANZSCO as being necessary to perform the tasks of the occupation.

6. The applicant was represented in relation to the review by her registered migration agent.

7. The Tribunal was able to make a decision in favour of the applicant on the material before it without the need for a 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 issue in the present case is whether the applicant meets the requirements in cl.187.234.

   Skills and qualifications

10. 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.

11. 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 IMMI 12/096, being the instruments in force at the time of the visa application.

12. Having regard to the classes of exempt persons as specified in the relevant instrument for the purposes of cl.187.234(a), the Tribunal is satisfied on the evidence before it that the applicant was not specified in the exempt class of persons and accordingly finds that cl.187.234(a) does not apply.

13. The Tribunal also finds that the occupation of Massage Therapist is not one specified in the relevant instrument, cl.187.234(b) therefore does not apply in this case.

14. As neither cl.187.234(a) or (b) apply, the Tribunal must consider whether the applicant had the qualifications listed in ANZSCO as being necessary to perform the occupation of Massage Therapist.

15. According to ANZSCO the occupation of Massage Therapist has a level of skill commensurate with the following qualifications and experience:

    ·     AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2) or

    ·     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.

16. The applicant provided information on the application form that she had a City and Guilds recognised qualification in Beauty Therapy and provided details of her employment, which was a mixture of full time and part-time employment from 2010 until the time of application. It was indicated on the decision record that the applicant did not hold a Diploma in association with the occupation of Massage Therapist and did not have the equivalent three years full of work experience to substitute for the formal qualifications.

17. The Tribunal has had regard to documents relating to the applicant’s qualifications, which includes a Level 2 City and Guilds National Vocational Qualifications in Beauty Therapy awarded in July 2009 and a City and Guilds NQV Level 3 Advanced Diploma in Beauty Therapy awarded in August 2010. A number of the subjects in the Advanced Diploma course were relevant to massage therapy treatments and techniques. The Tribunal has had regard to the Country Education Profile for the United Kingdom in relation to technical and vocational education qualifications which notes that a City and Guilds advanced technical diploma is comparable to the education level of a diploma under the Australian Qualification Framework (AQF) qualifications. On this basis the Tribunal is satisfied that the applicant has demonstrated that she has the level of skill commensurate with the qualification listed in the ANZSCO, namely a Diploma, to perform the occupation of Massage Therapist.

18. On the basis of the above, the Tribunal is satisfied that the applicant has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. Therefore, cl.187.234(c) is met and the applicant meets the requirements in cl.187.234.

19. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.234 of Schedule 2 to the Regulations.

    Rania Skaros
    Member