1419602 (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa. The applicant sought to have their visa application remitted for reconsideration by the Minister, arguing they met the requirements of clause 187.234 of Schedule 2 to the Migration Regulations.

The central legal issue before the Tribunal was whether the applicant satisfied clause 187.234, which outlines the skills and qualifications required for applicants in the Direct Entry stream. This clause presents three alternative pathways: being an exempt person, having skills assessed by a specified authority if the occupation is specified by the Minister and the qualification was not obtained in Australia, or possessing the qualifications listed in ANZSCO as necessary for the nominated occupation if neither of the preceding conditions is met. The Tribunal was required to determine which, if any, of these pathways the applicant had successfully navigated.

The Tribunal found that the applicant did not qualify as an exempt person under IMMI 12/060, thus failing to meet clause 187.234(a). Furthermore, as the applicant obtained their qualifications in Australia, clause 187.234(b) was deemed inapplicable. Consequently, the applicant was required to satisfy clause 187.234(c), which mandates having the qualifications listed in ANZSCO for the nominated occupation of Chef. The Tribunal noted that ANZSCO specifies an AQF Associate Degree, Advanced Diploma, or Diploma as commensurate with the skill level for Chefs. The Tribunal was satisfied that the applicant possessed a Certificate III in Hospitality (Commercial Cookery), an Advanced Diploma of Hospitality Management, and a Bachelor of Tourism and Hospitality degree, all obtained prior to the visa application.

Based on these findings, the Tribunal remitted the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration. The Tribunal directed that the applicant be considered to meet the criteria of clause 187.234 of Schedule 2 to the Regulations.