1500946 (Migration)

1500946 (Migration) [2015] AATA 3486 (21 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sally Fan Yan Tam
CASE NUMBER:  1500946
DIBP REFERENCE(S):  BCC2014/2030918
MEMBER:Carolyn Wilson
DATE:21 October 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 21 October 2015 at 12:19pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied to the Department of Immigration for the visa on 18 August 2014. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Student Counsellor. 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.
The delegate refused to grant the visa because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations because the applicant did not have the qualifications listed in ANZSCO as necessary to perform the tasks of the occupation.
The applicant appeared before the Tribunal by telephone on 15 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Vickie Powell, who is the applicant's Employer.
The applicant was represented in relation to the review by her registered migration agent, however the agent did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant has the qualifications listed in ANZSCO as necessary to perform the tasks of the occupation.
Skills and qualifications
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.
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.
The Minister has specified classes of persons which are exempt from the requirement of having a skills assessment and employment in the occupation for the purposes of cl.187.234(a) under the headings 'Class 2' and 'Class 3'. The Minister has also specified persons under the heading 'Class 1' but as this class does not apply to Subclass 187 visas it is not relevant to this case.
There is no evidence or claims before the Tribunal to indicate the applicant falls within one of the exempt classes. The Tribunal finds cl.187.234(a) does not apply.
To meet cl.187.234(b) the applicant’s skills must have been assessed as suitable for the occupation if the applicant’s occupation is specified in the relevant instrument and the applicant did not obtain the necessary qualifications in Australia. The applicant is not relying on qualifications obtained outside of Australia and cl.187.234(b) does not apply.
The applicant must therefore meet cl.187.234(c), as neither cl187.234(a) or (b) apply. In order to meet cl.187.234(c) the applicant needed to have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.
The ANZSCO description for the occupation Student Counsellor is as follows:
UNIT GROUP 2721 COUNSELLORS
COUNSELLORS provide information on vocational, relationship, social and educational difficulties and issues, and work with people to help them to identify and define their emotional issues through therapies such as cognitive behaviour therapy, interpersonal therapy and other talking therapies.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Tasks Include:
oworking with clients on career, study and employment options by obtaining and examining information relevant to their abilities and needs
oproviding information and resources to assist clients with job-seeking skills
oassessing client needs in relation to treatment for drug and alcohol abuse
oconducting counselling interviews with individuals, couples and family groups
oassisting the understanding and adjustment of attitudes, expectations and behaviour to develop more effective interpersonal and marital relationships
opresenting alternative approaches and discussing potential for attitude and behaviour change
oconsulting with clients to develop rehabilitation plans taking account of vocational and social needs
ocontributing information, understanding and advice on the learning and behaviour of students, especially those with special needs, and assisting parents and teachers in dealing with these needs
omay work in a call centre
Occupations:
272111 Careers Counsellor
272112 Drug and Alcohol Counsellor
272113 Family and Marriage Counsellor
272114 Rehabilitation Counsellor
272115 Student Counsellor
272199 Counsellors nec
272115 STUDENT COUNSELLOR

Alternative Title:
School Counsellor

Provides information and assistance to students, parents and teachers about a wide range of matters such as students' personal problems, learning difficulties and special requirements.
The applicant’s representative stated in written submissions that ANZSCO does not include an express requirement that the applicant must hold a qualification which is directly related to the nominated occupation, and on the face of it any degree would do. The representative submits it cannot be inferred the applicant must hold a directly related qualification.
The Tribunal has considered the submission but does not accept it. The Tribunal finds it can infer that ANZSCO is referring to qualifications that are relevant to the nominated occupation, as any other interpretation would be illogical. It would not be possible for example to accept that someone with a degree in Engineering would have the necessary qualifications to work as a Registered Nurse. In any event, ANZSCO clarifies in the section ‘Scope of the Classification’ that:
Formal education and training refers to the level and amount of education and training required for competent performance of the tasks required in an occupation[1].
[1]
The Regulations also state that the applicant must have the qualification listed in ANZSCO as being necessary to perform the tasks of the occupation. The Tribunal finds the applicant’s qualifications must therefore be relevant to the tasks of her nominated occupation Student Counsellor.
The applicant has a degree in Social Science (Environment) from RMIT. She relies on this degree as being sufficiently relevant to the occupation to satisfy cl.187.234(c). The applicant described her degree as social science focusing on environmental issues and the effect on people, and not a degree in environmental science. She claimed that out of the 24 subjects she studied for the degree about 10 of them were relevant to her work as a Counsellor. In written submissions she had only identified 6 subjects that she claims are relevant to the occupation.
The Tribunal has considered the applicant’s academic transcript listing her subjects and has considered her written and oral evidence about the subjects she claims are relevant to the occupation of Counsellor. The Tribunal has also considered the description on RMIT’s website of the Bachelor of Social Science (Environment) which states as follows:
The program has been designed to enable you to engage critically with sustainability theory and environmental policy frameworks to address sustainability imperatives and environmental stakeholder needs and issues. You will develop a breadth of knowledge and skills in areas including sustainability, environmental assessment, professional communication and project management. Upon successful completion, you will be equipped to work in roles such as environmental advocate, consultant or manager.[2]
[2] >
The Tribunal notes the applicant’s degree consisted of the following subject:
·Environmental Ideas
·The Changing Environment
·Sustainability, Society and Environment
·Modern Australian History
·Social History of Ideas
·Economics for the Social Sciences
·Social Construction of the Self
·Contemporary Australian Politics
·Employment Relations
·Environment Management
·Environment Politics and Change Theory
·Policy Practice (Environment and Planning)
·Environment Economics
·Environmental Work Practice
·Energy Policy and Management
·Client Bases Research (Environment)
·Natural Resource Management
·Planning: Statutory and Environmental
·Environmental Pollution Management
·Environmental Sustainability
·Race, Ethnicity and Racism
·Doing Research
·Designing Research
·Japanese
The Tribunal acknowledges the oral evidence of the applicant’s employer. Ms Powell is clearly supportive of this application and has found in the applicant an employee whom she believes has the right personal attributes and experience for the position. However, the question for the Tribunal is not whether the employer is satisfied with the applicant’s qualifications, but whether the applicant has the qualifications necessary to perform the tasks of the occupation.
The Tribunal is not persuaded on the evidence before it that the applicant’s degree, either considered holistically or looking at a selection of the subjects within it, is sufficiently relevant to the tasks of the occupation of Student Counsellor. The Tribunal notes the applicant’s claims that some of the subjects have some relevance. However the Tribunal does not consider any of those subjects are directly relevant and there are not enough subjects that may be of some relevance (such as ‘Social Construction of the Self’) to amount to this being a degree that equips the applicant with a qualification to perform the tasks of the occupation. That is, tasks relevant to providing information and assistance to students, parents and teachers about a wide range of matters such as students' personal problems, learning difficulties and special requirements. The Tribunal finds the applicant does not have qualifications necessary to perform the tasks of the occupation.
For the reasons given above, the Tribunal finds the applicant does not have the qualifications listed in ANZSCO as necessary to perform the tasks of the occupation: cl.187.234(c).
Therefore, cl.187.234 is not met.
The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
Carolyn Wilson
Member

[2015] AATA 3486

21 October 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness