1507409 (Migration)

[2015] AATA 3036

1507409 (Migration) [2015] AATA 3036 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pricto Thomas

CASE NUMBER:  1507409

DIBP REFERENCE(S):  BCC2013/1403142

MEMBER:Carolyn Wilson

DATE:2 July 2015

PLACE OF DECISION:  Adelaide

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 02 July 2015 at 2:10pm

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 5 September 2013. 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 Graphic Pre-Press Trades Worker. 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 on the basis the delegate considered they did not have the necessary qualifications.

6. The delegate’s decision was affirmed by the Tribunal, differently constituted, on 5 February 2015.  The matter was remitted by consent by order of Judge Lucev of the Federal Circuit Court on 26 May 2015.

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 has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation

   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 12/160.   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 claims he meets cl.187.234(c) because he has the qualifications listed n ANZSCO as being necessary to perform the tasks of the occupation.  The applicant’s occupation is that of Graphic Pre-Press Trades Worker (392211).  He had the following qualifications at time of application:  Certificate III in Printing and Graphic Arts conferred 4 December 2009, and a Diploma of Interactive Digital Media conferred 24 November 2010. 

12. The ANZSCO entry for Graphic Pre-Press Trades Worker lists the following qualifications as necessary:  AQF Certificate Iii including at least two years on-the-job training, or AQF Certificate IV, or three years relevant experience.   

13. The delegated found the applicant did not meet cl187.234(c) because although he had a Certificate III, he did not have at least two years on-the-job training.  The delegate did not take the Diploma into account. 

14. The Tribunal has considered the subject content of the applicant’s Diploma of Interactive Digital Media against the tasks specified in ANZSCO as the tasks of the occupation.  The Tribunal has satisfied itself the Diploma in question is an AQF qualification relevant to the occupation of Graphic Pre-Press Trades Worker.

15. The question is whether a relevant Diploma satisfies the requirement that the applicant had the qualifications listed in the ANZSCO description as necessary for the occupation, when ANZSCO lists the required qualifications as Certificates III or IV.   The Tribunal considers there is nothing in ANZSCO to exclude a higher qualification.  The Tribunal views the qualifications listed in ANZSCO as minimum qualifications, and considers that a higher qualification that contains subjects that go to the same skill set required to perform the tasks of the occupation, can satisfy the indicative skill level.   Of course, this will be only be the case where the higher qualification is composed of subjects directly relevant to the skill set required for the tasks of the occupation.  In this case, the Tribunal is satisfied the applicant’s Diploma is such a qualification.

16. The Tribunal finds the applicant has demonstrated that he meets the ANZSCO indicative skill level for Graphic Pre-Press Trades Worker and that he has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.  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 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.

    Carolyn Wilson
    Member