1419761 (Migration)

[2015] AATA 3042

1419761 (Migration) [2015] AATA 3042 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Pardeep Kaur Batth
Mr Narinder Batth
Master Anmolpreet Singh Batth

CASE NUMBER:  1419761

DIBP REFERENCE(S):  BCC2014/1402775

MEMBER:Carolyn Wilson

DATE:7 July 2015

PLACE OF DECISION:  Adelaide

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 07 July 2015 at 11:12am

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 6 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook. 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 they found the applicant did not meet cl.187.234 of Schedule 2 to the Regulations because they did not have the qualifications listed in ANZSCO as necessary.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets cl.187.234. 

   Skills and qualifications

9. 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.

10. For this criterion, the relevant classes of exempt persons have been specified in IMMI 12/060.  The applicant does not fall within any of the relevant classes of exempt persons for the purposes of cl.187.234(a).

11. The applicant has been nominated for the occupation of Cook. The applicant has completed a number of qualifications, including a Certificate IV in Commercial Cookery awarded in September 2011 and a Diploma in Hospitality Management awarded in May 2010, under the Australian Qualification Framework.  Evidence of her qualifications were provided to the Department.  

12. The applicant’s qualifications were obtained in Australia.   Therefore, she needs to satisfy cl.187.234(c) which requires her to have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

13. The ANZSCO description for a Cook (351411) sets out the skill level as being: an AQF Certificate III including at least two years on-the-job training; or an AQF Certificate IV.   In addition, three years of relevant experience may substitute for the formal qualifications.

14. The delegate found the applicant did not meet cl.187.234(c) because they considered her Certificate IV consisted of practical Certificate III units and that Departmental policy required that a higher qualification including Certificate III units also required two years relevant on-the-job training.   The Tribunal has noted the policy but is not bound by it.  The Tribunal notes there is nothing in ANZSCO that reflects this policy, and considers all that is required by cl.187.234(c) is that an applicant have the qualifications listed in ANZSCO as being necessary. 

15. The Tribunal accepts the applicant had a relevant Certificate IV qualification at time of application.  The Tribunal finds a Certificate IV is stated in the ANZSCO description for a Cook as one of two possible qualifications.  There is no requirement in ANZSCO for two years on-the-job training for a person holding a Certificate IV.

16. The Tribunal finds the applicant has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation Cook, as required by cl.187.234(c).  Therefore, cl.187.234 is met.

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

    DECISION

18. 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.

    Carolyn Wilson
    Member