1514448 (Migration)

[2016] AATA 3900

1514448 (Migration) [2016] AATA 3900 (16 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms YAN XUE

CASE NUMBER:  1514448

DIBP REFERENCE(S):  BCC2015/1011317

MEMBER:Carolyn Wilson

DATE:16 May 2016

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 16 May 2016 at 11:35am

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 1 April 2015. 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 Hairdresser. 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 applicant had not provided evidence of her qualifications in hairdressing.

6. The applicant was represented in relation to the review by her registered migration agent.

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 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. The applicant is not in one of the relevant classes of exempt persons as specified in the relevant instrument.  The applicant did not obtain the necessary qualifications overseas, but has studied Hairdressing in Australia.  Therefore the relevant criterions for the applicant to meet is cl.187.234.

11. The qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation are an AQF Certificate III including at least 2 years of on-the-job training or an AQF Certificate IV.   The delegate noted in their decision that although the applicant included in her resume that she had the appropriate Certificates III and IV in Hairdressing, copies of the certificates themselves were not provided.  On review the applicant provided a letter from her training provider as evidence she completed these certificates, but again did not provide copies of the certificates. At the Tribunal’s request, copies of the certificates were provided.  They show the applicant was awarded the relevant Certificate III on 10 August 2012 and the Certificate IV on 17 December 2012.

12. The Tribunal has satisfied itself that the applicant has completed an AQF Certificate IV in Hairdressing in Australia.  The applicant has therefore demonstrated she had, at time of application, the qualifications listed in ANZSCO as necessary to perform the tasks of the occupation. 

13. Therefore, cl.187.234 is met.

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

    DECISION

15. 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