1418830 (Migration)

[2015] AATA 3890

1418830 (Migration) [2015] AATA 3890 (17 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs DILAKSHI UPALALIKA JAYAWEERA
Mr HARSHANA JAYADEWA WIJESINGHE KOROPPU APPUHAMILAGE

CASE NUMBER:  1418830

DIBP REFERENCE(S):  BCC2014/1759998

MEMBER:Brook Hely

DATE:17 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named 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 17 December 2015 at 11:56am

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 18 July 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of child care 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.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations because no supporting documents were provided with the application to demonstrate that the applicant had the necessary qualifications for the position.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Skills and qualifications

7. 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.

8. 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. 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

9. The Minister has specified classes of persons which are exempt from the requirement of having a skills assessment and employment in the occupation for the purposes of cl.187.234(a) under the headings ‘Class 2’ and ‘Class 3’. The Minister has also specified persons under the heading ‘Class 1’ but as this class does not apply to Subclass 187 visas it is not relevant to this case.

10. The classes of persons specified under IMMI 12/060 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.

11. In relation to Class 2, 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. There is no evidence to show that the applicant’s salary exceeds $180,001, which is the current Australian Tax Office top individual income tax rate. The applicant is thus not a person in Class 2.

12. In respect of Class 3, 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 and she is thus not a person in Class 3.

13. Based on the above findings, cl.187.234(a) does not apply.

    Skills assessment

14. The applicant’s skills must have been assessed as suitable for the occupation if the applicant’s occupation is specified in the relevant instrument and the applicant did not obtain the necessary qualifications in Australia. Regardless of whether the applicant’s nominated occupation is specified by the Minister for the purposes of cl.187.234(b), as she is relying on her study and experience obtained in Australia, she does not meet the requirements of cl.187.234(b)(ii). Therefore, cl.187.234(b) does not apply.

    Qualifications held

15. 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 childcare worker at the time of application.

    Overview of the ANZSCO requirements

16. According to ANZSCO, a childcare worker (ANZSCO Code 421111) ‘provides care and supervision for children in programs, such as long day care and occasional care, in childcare centres, hospitals and educational centres’ and is an occupation that has been assigned to Skill Level 4. It appears under the unit group of Child Carers (4211) and the following is set out under the ‘Skill Level’ subheading:

    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 II or III (ANZSCO Skill Level 4)

    In New Zealand:

    NZ Register Level 2 or 3 qualification (ANZSCO Skill Level 4)

    At least one year 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.

    Registration or licensing may be required.

    Delegate’s decision

17. The delegate refused the application because, despite being requested by the Department, no documents were submitted in support of the application. As such, the delegate felt unable to conduct a full and proper assessment of the application and refused the application on the basis that no evidence had been supplied to demonstrate that the requirements of cl.187.234 were met.

    Evidence provided to the Tribunal

18. Since the delegate’s decision, the applicant has provided to the Tribunal copies of the following documents relevant to her qualifications:

    a.Diploma of Children’s Services from Holmesglen TAFE, dated July 2010

    b.Statement of Academic Completion from Holmesglen TAFE, confirming that the applicant completed her Diploma of Children’s Services on 18 June 2010, and

    c.Statement of Results listing each of the units completed by the applicant, as well as her results, as part of her Diploma of Children’s services.

19. Additionally, in her application to the Department she claimed to have completed the following periods of relevant work experience:

    a.Buddies Early Learning Centre (1 May 2012 – 1 February 2014) - childcare worker

    b.Alexandra Baby Care (15 February 2014 – 18 July 2014) – childcare room leader.

20. On 26 November 2015, the Tribunal wrote to each of the applicant’s claimed former employers, seeking confirmation of her periods of employment. On 16 December 2015, the Tribunal received a response from Buddies Early Learning Centre confirming the employment details in the application as correct. The Tribunal was unable to obtain a response from Alexandra Baby Care.

    Findings and reasons

21. The Tribunal is mindful that the applicant’s qualifications are higher than those stipulated in ANZSCO, namely a Diploma rather than a Certificate II or III. The Tribunal appreciates that, in line with Department policy, it does not necessarily follow that a higher qualification means that a person has the requisite practical skills to perform a lower-skilled occupation, even when the occupation falls within the same industry or field. However, the Tribunal notes the direct relevance between many of the applicant’s diploma subjects and the duties listed under ANZSCO for the occupation of childcare worker. Additionally, the relevant guidance from ANZSCO states that at least one year of relevant experience may substitute for the relevant formal qualifications. In this case, the Tribunal has received written confirmation from the applicant’s former employer confirming that she worked approximately 30 hours per week as a childcare worker between May 2012 and February 2014. The Tribunal accepts that this constitutes at least one year of relevant work experience in the nominated position.

22. Viewing the evidence together, the Tribunal accepts that the applicant has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. It follows that the Tribunal accepts that the applicant satisfies the requirements of cl.187.234(c) and therefore satisfies cl.187.234 in its entirety.

23. 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 187 visa.

24. The second named applicant’s entitlement to a visa is initially dependent on whether the primary applicant is successful in obtaining the visa, and then on whether he meets any additional visa criteria applicable. Given that the application is being remitted to the Department to consider the remaining criteria for a Subclass 187 visa in respect of the primary applicant, it follows that the Department must also consider the remaining criteria in respect of the secondary applicant as well.

    DECISION

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

    ·cl.187.234 of Schedule 2 to the Regulations.

    Brook Hely
    Member