1419602 (Migration)

[2016] AATA 3989

1419602 (Migration) [2016] AATA 3989 (17 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haolei Chen

CASE NUMBER:  1419602

DIBP REFERENCE(S):  BCC2014/1388445

MEMBER:Alison Mercer

DATE:17 June 2016

PLACE OF DECISION:  Melbourne

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 17 June 2016 at 2:46pm

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 5 June 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 Chef. 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 he found that the applicant did not meet cl.187.234 of Schedule 2 to the Regulations. The delegate found that subparagraphs (a) and (b) of cl.187.234 did not apply to the applicant and he was therefore required to meet cl.187.234(c). This subparagraph required that the applicant had the qualifications listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary as being necessary to perform the tasks of the nominated occupation. The delegate noted that ANZSCO required Chefs to have an Associate Degree, Advanced Diploma or Diploma. ANZSCO also stated that in some cases, 3 years of relevant work experience might substitute for a formal qualification. The delegate further noted that Departmental policy stated that Certificate IV and Diploma qualifications could not substitute for the Certificate III requirement of 2 years of on-the-job training. The delegate found that the applicant had completed a 2 year Diploma of Hospitality Management, of which the first year consisted of a Certificate III in Commercial Cookery. The delegate was not satisfied that this met the Department’s policy guidelines to have included at least 2 years of on-the-job training. The delegate considered the policy that, if an applicant had not completed a Certificate III with 2 years of on-the-job training, he or she could still meet the requirement if he or she had 2 years of post-qualification work experience. The delegate was not satisfied that the applicant had such work experience as no documentation had been provided to support his claims to have worked as a cook at the Airport West Asian Inn Chinese for approximately 2 years after completing his Certificate III.

6. The Tribunal received a review application from the applicant on 1 December 2014.

7. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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 of 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. 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.

12. The Tribunal is satisfied that the applicant is not a specified class of exempt persons under IMMI 12/060 and finds that he does not meet cl.187.234(a).  As the applicant obtained his qualifications in Australia, cl.187.234(b) is not applicable to his case.  Accordingly, he must satisfy cl.187.234(c) in order to meet cl.187.234 as a whole.

13. Pursuant to cl.187.234(c), the applicant must have the qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation of Chef.  The Tribunal notes that ANZSCO lists the following qualifications:

    UNIT GROUP 3513 CHEFS

    CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.

    Cooks, Fast Food Cooks and Kitchenhands are excluded from this unit group. Cooks are included in Unit Group 3514 Cooks. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.

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

14. The Tribunal is satisfied from the material on the Department’s file that the applicant has a Certificate III in Hospitality (Commercial Cookery), an Advanced Diploma of Hospitality Management and a Bachelor of Tourism and Hospitality degree, all of which were obtained prior to his subclass 187 visa application.

15. The Tribunal notes the delegate’s concerns regarding the lack of practical experience components in certain Certificate IV and Diploma qualifications and the issue of whether the applicant had 2 years of post-qualification work experience (as per the Department’s guidelines, as they were at the time of the delegate’s decision).  However, in the Tribunal’s view, the requirement set out in cl.187.234(c) simply requires an assessment as to whether the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. It does not in the Tribunal's view require an assessment of the practical and theoretical components of the qualifications. As set out above, for Chef, the qualifications listed in ANZSCO include an Advanced Diploma. The applicant’s Advanced Diploma of Hospitality qualification was issued by Swinburne University of Technology in January 2011 and the Tribunal is satisfied that it is recognised within the Australian Qualifications Framework (AQF). According to the Provider Registration and International Student Management System (PRISMS) maintained by the Department of Education, the provider is a Registered Training Organisation which was registered to deliver and assess that qualification at the time. The occupation of Chef is listed as being related to the Advanced Diploma of Hospitality on the government training.gov.au website.

16. The Tribunal acknowledges that the delegate had regard to Departmental policy in assessing the applicant’s case. However, there does not appear to be any legislative basis for requiring additional work experience or practical experience where the person holds an AQF Advanced Diploma relevant to the occupation. The Tribunal notes that the Department’s policy guidelines have been amended since the date of the delegate’s decision and no longer refer to the need for someone with a Certificate IV or higher qualification to demonstrate that that qualification involved at least 2 years of on-the-job training or for the applicant to have undertaken at least 2 years of post-qualification work experience. For a Chef, ANZSCO refers to 3 years of relevant experience if the person does not have the listed formal qualifications. However, the applicant holds an Advanced Diploma of Hospitality which the Tribunal finds is one of the qualifications listed in ANZSCO for the occupation of Chef.

17. The applicant was issued with the AQF Advanced Diploma of Hospitality in January 2011, and the Tribunal finds that the applicant had the qualification listed in ANZSCO as being necessary to perform the occupation of Chef at the time of application. It finds that the requirement of cl.187.234(c) is met, and the applicant meets the requirements of cl.187.234 of Schedule 2 to the Regulations.

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

    DECISION

19. 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.

    Alison Mercer  
    Member