1420141 (Migration)

[2016] AATA 3062

1420141 (Migration) [2016] AATA 3062 (12 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Hanssel Tamargo Ting

CASE NUMBER:  1420141

DIBP REFERENCE(S):  BCC2014/1881047

MEMBER:Dione Dimitriadis

DATE:12 January 2016

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 12 January 2016 at 7:31am

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 (the Department) for the visa on 1 August 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 Motor Mechanic (General) (ANZSCO 321211). 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.

6. The applicant was represented in relation to the review.

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 visa applicant on the basis of the material before it, pursuant to s.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 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 Legislative Instrument 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

12. The Minister has specified classes of persons that are exempt from the requirement of having a skills assessment and employment in the occupation for the purposes of cl.187.234(a) in IMMI 12/060 under the headings Class 2 and Class 3. The Minister has also specified persons under the heading Class 1 but this class does not apply to Subclass 187 visas and is not relevant to this case.

13. The specified classes of persons 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.

14. The delegate stated in the decision record that the applicant’s earnings will be $42,286 per annum. There is no evidence that the applicant’s wages will be at least $180.001 per annum. The Tribunal is satisfied that the applicant’s wages do not amount to $180,001, which is the current Australian Tax Office top individual income tax rate. The applicant is therefore not a person in Class 2.

15. There is no evidence that the applicant has ever held a Subclass 444 or 461 visa.  The Tribunal is not satisfied that the applicant has ever been the holder of a Subclass 444 or 461 visa. The Tribunal finds that the applicant is not a person in Class 3.

16. The Tribunal therefore finds that cl.187.234(a) does not apply.

    Skills assessment

17. It is a requirement that the applicant’s skills had been assessed as suitable for the occupation if the applicant’s occupation is specified in the relevant instrument and the applicant obtained the necessary qualifications overseas. The occupation of Motor Mechanic (General) is specified by the Minister for the purposes of cl.187.234(b). However, the applicant obtained the necessary qualifications in Australia. The Tribunal finds that cl.187.234(b) does not apply.

    Qualifications held

18. As neither cl.187.234(a) nor (b) apply, the Tribunal will consider whether the applicant has the qualifications listed in ANZSCO as being necessary to perform the occupation of Motor Mechanic (General).

19. According to ANZSCO, the occupation of Motor Mechanic (General) (ANZSCO 321211) has Skill Level 3.  The occupation of Motor Mechanic (General) comes under the Unit Group of Motor Mechanics (3212).  The qualifications listed in ANZSCO as being necessary to perform the tasks of a Motor Mechanic in Australia are an AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3). The qualifications listed in ANZSCO as being necessary to perform the tasks of a Motor Mechanic in New Zealand are a NZ Register Level 4 qualification (ANZSCO Skill Level 3).

20. Although it is not explicitly stated, the Tribunal is of the view that the qualifications set out above must be in the field of study relevant to the occupation as ‘skill level’ in ANZSCO reflects the level of skill required to competently perform the set of tasks required for that occupation.[1] This view is supported by the requirement in cl.187.234(c) that the applicant has the qualifications listed as being necessary to perform the tasks of the occupation.

    [1] Refer to ANZSCO, the Australian and New Zealand Standard Classification of Occupations First Edition Revision 1 entitled “Conceptual Basis of ANZSCO”, under the subheading of The concept of skill level.

21. In the visa application, the applicant stated that he completed an AQF Certificate III at TAFE South West and the course name was Light Vehicle Automotive Technology. He undertook the course from 1 February 2012 to 5 December 2014. He also completed an AQF Certificate IV at TAFE South West and the course name was Light Vehicle Automotive Technology (sic). The applicant undertook the course from 1 February 2014 to 20 July 2014.

22. The applicant provided to the Department copies of his qualifications including a Certificate IV in Automotive Mechanical Overhauling issued on 25 July 2014 by TAFE Queensland South West and a Certificate III in Automotive Mechanical Technology (Light Vehicle) issued on 18 October 2013 by TAFE Queensland South West. The applicant provided the ‘Awards Element List’, academic history and results of assessments.

23. On 23 December 2015 the Tribunal received a submission from the representative who provided a letter dated 21 December 2015 from the applicant’s employer, Len Patti Motors, and a certificate from Mitsubishi motors confirming that the applicant is a registered Mechanic. The certificate dated 2 April 2015 from Mitsubishi Motors states that the applicant has completed Mitsubishi Technicians courses and achieved the standard required to be recognised as a registered Mechanic.

24. The company secretary of Len Patti Motors, Cherryl Grout, stated that the applicant has been employed as a full time motor vehicle technician since 15 August 2014.

25. The representative submitted that the delegate’s decision was wrong both as to the interpretation of the legislation and the ANZSCO dictionary. The representative submitted that the Certificate IV held by the applicant satisfies cl.187.234. The representative referred to the updated Policy (PAM 3) of the Department which states, with respect to cl.187.234, that if the applicant relies on an Australian qualification, that qualification must be as specified within the ANZSCO framework for that occupation. It also states that:

    Under ANZSCO, there is no requirement of 2 years of on-the-job training for Certificate IV qualifications. Therefore the applicant is not required to demonstrate 2 years of on-the-job training for Cert IV qualifications.

26. Departmental policy contained within its Procedures Advice Manual provides guidance on the interpretation of cl.187.234, although the Tribunal is not bound by these guidelines. The Tribunal has to make a decision on the law.  The Tribunal has had regard to the applicant’s qualification of a Certificate IV in Automotive Mechanical Overhauling issued on 25 July 2014 by TAFE. The applicant also holds a Certificate III in Automotive Mechanical Technology (Light Vehicle) issued by TAFE. The applicant provided the ‘Awards Element List’, academic history and results of assessments.  

27. The Tribunal has considered the courses which the applicant undertook and the qualifications he gained in Australia. The Tribunal is satisfied that the applicant has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation of Motor Mechanic (General). 

28. Therefore, cl.187.234 is met.

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

    DECISION

30. 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.

    Dione Dimitriadis
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994 AND ANZSCO

    187.234 

    At the time of application:

    (a)  the applicant was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph; or  

    (b)  all of the following requirements were met:

    (i)  the applicant’s occupation is specified by the Minister in an instrument in writing for this subparagraph;

    (ii)  the applicant did not obtain the necessary qualification in Australia;

    (iii)  the applicant’s skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph (i) as the assessing authority for the occupation;

    (iv)  the assessment was not for a Subclass 485 (Temporary Graduate) visa;

    (v)  if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment — the period had not ended;

    (vi)  if subparagraph (v) did not apply — not more than 3 years had passed since the date of the assessment; or

    (c)  if neither paragraph (a) nor (b) applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

    1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2  

    UNIT GROUP 3212 MOTOR MECHANICS

    
    MOTOR MECHANICS repair, maintain and test motor vehicle and other internal combustion engines and related mechanical components.

    Motor Vehicle Parts and Accessories Fitters are excluded from this unit group. Motor Vehicle Parts and Accessories Fitters are included in Unit Group 8994 Motor Vehicle Parts and Accessories Fitters.
    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 III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    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.

    Registration or licensing may be required.
    Tasks Include:

    odetecting and diagnosing mechanical and electrical faults in engines and parts

    odismantling and removing engine assemblies, transmissions, steering mechanisms and other components, and checking parts

    orepairing and replacing worn and defective parts and reassembling mechanical components, and referring to service manuals as needed

    operforming scheduled maintenance services, such as oil changes, lubrications and engine tune-ups, to achieve smoother running of vehicles and ensure compliance with pollution regulations

    oreassembling engines and parts after being repaired

    otesting and adjusting mechanical parts after being repaired for proper performance

    odiagnosing and testing parts with the assistance of computers

    omay inspect vehicles and issue roadworthiness certificates or detail work required to achieve roadworthiness

    omay respond to vehicle breakdown service calls

    
    Occupations:

    321211 Motor Mechanic (General)
    321212 Diesel Motor Mechanic
    321213 Motorcycle Mechanic
    321214 Small Engine Mechanic

    
    321211 MOTOR MECHANIC (GENERAL)

    
    Alternative Title:

    Automotive Light Mechanic

    
    Maintains, tests and repairs petrol engines and the mechanical parts of lightweight motor vehicles such as transmissions, suspension, steering and brakes. Registration or licensing may be required.

    Skill Level: 3
    Specialisations:

    Automatic Transmission Mechanic
    Automotive Airconditioning Mechanic
    Brake Mechanic
    Ground Support Equipment Fitter (Air Force)
    Roadside Mechanic
    Vehicle Mechanic (Army)

    .....