1500092 (Migration)

[2016] AATA 3997

1500092 (Migration) [2016] AATA 3997 (17 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Balwinder Kaur
Mr Mandip Singh Mandip Singh
Mr Amitoj Singh Girn

CASE NUMBER:  1500092

DIBP REFERENCE(S):  BCC2014/1595147

MEMBER:Alison Mercer

DATE:17 June 2016

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 June 2016 at 3:38pm

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 29 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 the delegate found that the applicant did not meet cl.187.234 of Schedule 2 to the Regulations. The delegate found that the applicant was not a specified exempt person and had obtained her qualifications in Australia, and thus cl.187.234(a) and (b) did not apply to her. She was therefore required to satisfy cl.187.234(c) which required her to have the qualifications listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary for her nominated occupation. The qualifications listed in ANZSCO for the occupation of Cook were an AQF Certificate III (with at least 2 years of on-the-job training), or an AQF Certificate IV.

6. The delegate referred to Departmental policy which stated that an alternative to the requirement for 2 years on-the-job training was 2 years of post-qualification work experience, and that if a Certificate IV or Diploma qualification largely consists of practical Certificate III units, then the higher qualification had to include at least 2 years of on-the-job training, or in the alternative, at least 2 years of relevant post-qualification work.  The delegate accepted that the applicant had a Certificate III and Certificate IV in Hospitality (Commercial Cookery) undertaken between 3 September 2012 and 9 April 2014 at Melbourne City Institute of Education, a Diploma of Business undertaken between 14 June 2010 and 7 June 2011 at Sunshine College of Management and a Diploma of Management undertaken between 15 August 2011 and 3 August 2012 at Della International College.  The delegate found that the applicant’s Certificate III did not involve at least 2 years of on-the-job training and did not accept that the Diploma of Business or the Diploma of Management was a relevant qualification for the occupation of Cook.  In relation to the applicant’s Certificate IV, the delegate found that this did not involve at least 2 years of on-the-job training.  The delegate further found that the applicant had only 12 months of post-qualification work experience. The delegate concluded that the applicant therefore did not meet cl.187.234(c).  The second and third named applicants (the spouse and child of the applicant) were also refused visas as the delegate found that they did not satisfy cl.187.311, which required them to be members of the family unit of a person who held a subclass 187 visa.

7. The Tribunal received a review application from the applicants on 5 January 2015.  It was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Juhjar Singh, as their representative and authorised recipient for correspondence for the purposes of the review.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Skills and qualifications

11. 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.

12. 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.

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

14. 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 Cook.  The Tribunal notes that ANZSCO lists the following qualifications:

    UNIT GROUP 3514 COOKS

    COOKS prepare, season and cook food in dining and catering establishments.

    Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. 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 Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

15. The Tribunal is satisfied from the material on the Department’s file that the applicant has a Certificate III and a Certificate IV in Hospitality (Commercial Cookery), both of which were obtained prior to her subclass 187 visa application.

16. 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 Cook, the qualifications listed in ANZSCO include a Certificate IV. The applicant’s Certificate IV of Hospitality (Commercial Cookery) qualification was issued by Melbourne City Institute of Education on 9 April 2014 and specifically states that the Certificate IV is 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 Tribunal is satisfied that the Certificate IV in Hospitality (Commercial Cookery) is relevant to the occupation of Cook.

17. 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 Certificate IV 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. The applicant holds an Certificate IV in Hospitality (Commercial Cookery) which the Tribunal finds is one of the qualifications listed in ANZSCO for the occupation of Cook.

18. The Tribunal therefore 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.

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

20. As the second and third named applicants made their applications on the basis of being members of the family unit of the applicant, their applications will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.

    DECISION

21. 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.

    Alison Mercer
    Member