1505896 (Migration)

[2016] AATA 4251

1505896 (Migration) [2016] AATA 4251 (9 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms TOYAH NATASHA HEADRIDGE

CASE NUMBER:  1505896

DIBP REFERENCE(S):  BCC2014/3142227

MEMBER:Jennifer Ciantar

DATE:9 August 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 09 August 2016 at 1:29pm

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 for the visa on 21 November 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 Youth Worker ANZSCO 411716. 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 because the delegate was not satisfied that the applicant’s qualification of a Diploma of Early childhood and Care was relevant to the nominated position and the applicant had had less than 3 years of relevant work experience.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Skills and qualifications

8. 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.

9. 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).

10. Also, the applicant has not provided a skills assessment for the purposes of cl.187.234(b).   As neither paragraph (a) or (b) applies, 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.

    Qualifications held

11. As neither cl.187.234(a) or (b) apply, the Tribunal will consider whether the applicant has the qualifications listed in ANZSCO as being necessary to perform the occupation of youth worker at the time of application.

12. ANZSCO provides the following guidance:

    411716 YOUTH WORKER

    Alternative Titles:

    Youth Officer
    Youth Support Worker

    Assists young people as individuals or groups to solve social, emotional and financial problems in an agency framework.

    Skill Level: 2

    Specialisations:

    Juvenile Justice Officer
    Youth Accommodation Support Worker
    Youth Liaison Officer

    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    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.

    Evidence provided to the Tribunal

13. Since the delegate’s decision, the applicant has provided to the Tribunal copies of the following documents relevant to her qualifications and work experience:

    ·     Diploma of Early Childhood and Care dated 12 February 2015;

    ·     Transcript of the course;

    ·     TAFE Riverina Institute advises in a letter dated 24 November 2014 that the applicant has completed this course;

    ·     a reference dated 14 May 2013 from the Coordinator, Northcott, which states that the applicant was employed as a support worker based at a residential house for young people from nursing homes;

    ·     a reference dated 6 January 2016 from the General Manager, Anglicare, which confirms that the applicant has been employed with Anglicare since March 2013. Her current full time position is that of youth worker and coordinator of a residential home for adolescents and the applicant was appointed to this position following an advertisement in September 2015;

    ·     a letter of support from the Anglicare Riverina Residential Services Coordinator, dated 12 May 2015, who writes that the applicant became the second in charge of Topaz Boys Residential House since November 2014;

    ·     a reference from Karena Bourlioufas, dated 20 June 2015, in her capacity as the applicant’s line manager, Residential Coordinator, out of Home Care Program,  until January 2015. She writes that the children in the program have typically suffered complex trauma, abuse and neglect and have been assessed as functioning between the approximate ages of 4 and 8 due to their brains not forming correctly during early childhood years. Physical and developmental delays cause further impairment which puts their current educational level at a reception to Year 1 level. All the clients receive disability funding in the classroom. When hiring, Ms Bourlioufas looked for candidates with a background in a child related field or in disability or early childhood, as such staff have a better capacity to communicate with clients at their level. The facility also uses many aides and settings that are used in child care and early education. The applicant commenced employment with Riverina Anglicare on 31 March 2013, on a casual basis and then she took on shift work. As the holder of a student visa the applicant undertook a Certificate III in Early Childhood Education and Care in June 2013, which she completed in late 2013. She commenced the Diploma in early 2014 and continued to work at Northcott Disability Services and also for Riverina Anglicare. The applicant also worked at Myers from October 2012 to mid-2013. The applicant has since commenced a program called “The Extra Lesson”. In 2014, the applicant was promoted to a senior youth work role. Ms Bourlioufas also writes that in 2013 she had organised for all staff to complete a Certificate IV in Youth Work but she did not ask the applicant to do so as after consulting TAFE, Ms Bourlioufas decided that the Diploma that the applicant was undertaking qualified her to the same level and there were many overlapping subjects. The applicant had also undertaken on the job training provided by the in house Anglicare recognised training provider, Sal Consulting. Anglicare then decided to sponsor the applicant in September 2014, in order to retain her services;

    ·     A letter from SAL Consulting, the Anglicare training provider;

    ·     Curriculum vitae which states that the applicant was a support worker at Northcott Disability from November 2012 to May 2013 when she left due to visa restrictions and she has been a youth worker/key worker/residential coordinator at Anglicare since March 2013;

    ·     a statement of duties for the position of Youth Worker Anglicare.

14. The delegate found that although the applicant has a Diploma, it was not relevant to the nominated position of Youth Worker. However, the Tribunal finds the information provided by Karena Bourlioufas and Sal Consulting to be informative and persuasive concerning the cognitive and developmental delay of the young people with whom the applicant works, and hence the relevance of an early childhood qualification to this particular type of youthwork. The Tribunal is of the view that the evidence indicates that the applicant’s specialisation is that of youth accommodation support worker. The Tribunal accepts that many of the applicant’s Diploma subjects are of direct relevance to the duties listed under ANZSCO for the occupation of youth worker, taking into account her specialisation. On the evidence, the Tribunal is satisfied that the applicant has a Diploma of Early Childhood and Care, which meets the indicative skill level and qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation of youth worker.

15. In any case, the Tribunal also accepts that since March 2013 the applicant has worked as a youth worker, albeit on a part-time or casual basis for some of this period. The Tribunal accepts that this constitutes at least three years of relevant work experience in the nominated position. The Tribunal notes that on the visa application form the applicant gave her start date at Anglicare as November 2013 but the references from the employer and the CV give the start date as March 2013; it may be that the applicant was part-time or casual between March and November 2013.

16. Taking all the evidence into account, the Tribunal accepts that the applicant has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. It follows that the Tribunal accepts that the applicant satisfies the requirements of cl.187.234(c) and therefore satisfies cl.187.234 in its entirety.

17. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 187 visa.

    DECISION

18. 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

    Jennifer Ciantar
    Member