De Oliveira (Migration)

[2019] AATA 5730

De Oliveira (Migration) [2019] AATA 5730 (23 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Wesley Tadeu De Oliveira
Mrs Franciele Davi De Souza

CASE NUMBER:  1912115

HOME AFFAIRS REFERENCE(S):          BCC2019/639269

MEMBER:Nicola Findson

DATE:23 December 2019

PLACE OF DECISION:  Perth

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 23 December 2019 at 10:53pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – qualifications, experience and skill level – ANZSCO description of occupation – job tasks in home country – experience in home country relevant to employment in nominated position – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.234(c)(iii)

CASES

Re Drake (No 2) (1978-1980) 2 ALD 634

Visnumolakakala v Minister for Immigration [2006] FMCA 1209

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 Home Affairs 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 for the visas on 26 February 2019. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Financial Investment Adviser.  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 applicant did not meet cl.187.234 of Schedule 2 to the Regulations because the delegate considered that the applicant had not been employed in the occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation.

6. The applicant appeared before the Tribunal on 12 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Andrew Sawyer, Principal of Mortgage Choice.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant, at the time of application, had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation, and whether he has been employed in the occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation.

   Skills and qualifications

10. 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.

11. For visa applications made on or after 18 March 2018, applicants who are not exempt persons must also have been employed in the occupation for at least 3 years on a full time basis and at the level of skill required for the occupation.

12. For this criterion, the relevant classes of exempt persons have been specified in IMMI 18/045, 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 applicant does not fall within any of the relevant classes of exempt persons for the purposes of cl.187.234(a). The Tribunal finds that cl.187.234(a) does not apply.

14. The occupation of Financial Investment Adviser is not an occupation specified by the Minister in IMMI 12/096.  Therefore, cl.187.234(b) does not apply.

15. Given that neither cl.187.234(a) or (b) applies in this case, the applicant must therefore meet cl.187.234(c).  The applicant claims he meets cl.187.234(c) because, at the time of application, he had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation and, in addition, he had been employed in the occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation. 

16. The ANZSCO description for the occupation of Financial Investment Adviser is as follows:

    UNIT GROUP 2223 FINANCIAL INVESTMENT ADVISERS AND MANAGERS

    FINANCIAL INVESTMENT ADVISERS AND MANAGERS develop financial plans for individuals and organisations, and invest and manage funds on their behalf.

    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. At least five years of relevant experience may substitute for the formal 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).
    
    Registration or licensing may be required.

    Tasks Include:

    ointerviewing prospective clients to determine financial status and objectives, discussing financial options and developing financial plans and investment strategies

    omonitoring investment performance, and reviewing and revising investment plans based on modified needs and changes in markets

    orecommending and arranging insurance cover for clients

    oarranging to buy and sell stocks and bonds for clients

    oadvising on investment strategies, sources of funds and the distribution of earnings

    osetting financial objectives, and developing and implementing strategies for achieving the financial objectives

    omanaging funds raised from personal superannuation savings policies and unit trusts

    oassisting in meeting superannuation compliance requirements

    odirecting the collection of financial, accounting and investment information and the preparation of budgets, reports, forecasts and statutory returns

    omay refer clients to other organisations to obtain services outlined in financial plans

    Occupations:

    ·222311 Financial Investment Adviser
    222312 Financial Investment Manager

    222311 FINANCIAL INVESTMENT ADVISER

    Alternative Title:

    Financial Planning Adviser

    Develops and implements financial plans for individuals or organisations, and advises on investment strategies and their taxation implications, securities, insurance, pension plans and real estate. Registration or licensing may be required.

    Skill Level: 1

17. The delegate found the applicant did not meet cl.187.234(c), because although he had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation, he had not been employed in the occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation, as required by cl.187.234(c)(iii). 

18. On the basis of the oral and documentary evidence before it, the Tribunal is satisfied that the applicant was conferred with a Bachelor of Business Administration, in Brazil, in 2008 as well as a Post-Graduate Diploma in Finance and Auditing in 2011.  The Tribunal has considered the subject content of the applicant’s qualifications against the tasks specified in ANZSCO as the tasks of the occupation.  The Tribunal has satisfied itself that the Bachelor Degree and Post-Graduate Diploma are relevant to the occupation of Financial Investment Adviser.

19. The Tribunal therefore finds that the applicant has demonstrated that he meets the ANZSCO indicative skill level for Financial Investment Adviser and that he has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

20. In considering whether the applicant satisfies cl.187.234(c)(iii), the Tribunal has had regard to the Department’s Procedural Instructions.  As regards the application of these policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan, J in Re Drake (No 2) (1978-1980) 2 ALD 634. Indeed, in Visnumolakakala v Minister for Immigration [2006] FMCA 1209 Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.

21. According to the departmental policy, applicants need to demonstrate that they have been employed at the level of skill required for the occupation. That is, the applicant must have been employed and actively performing the duties of the nominated occupation for a period of at least 3 years after obtaining any qualifications that would allow them to work without restriction in the occupation.  They must have been fully skilled to perform the duties specified for the occupation.  Any periods of work performed in any occupational training capacity (for example, an apprentice, trainee or assistant) do not count towards the 3 year full-time work experience.

22. In considering whether the applicant has been employed in the occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation, the Tribunal has considered the applicant’s employment history as set out in the material provided in support of his visa application, including his resume and employment reference letters from the Bonsucesso Bank and Mortgage Choice, as well as his oral evidence. 

23. In assessing the evidence, the Tribunal observes that it had the benefit of taking evidence from the applicant, who presented as a persuasive, reliable witness.

24. On the basis of the evidence before it, which the Tribunal accepts, following the conferral of his Bachelor of Business Administration, the applicant was employed by the Bonsucesso Group – a family managed bank in Brazil.  The applicant worked as an Investment Analyst between January and December 2010 (12 months) and also as a Financial Associate between January to September 2011 (9 months), and he relies on this experience to meet the requirement in cl.187.234(c)(iii).

25. At his hearing, the Tribunal discussed with the applicant its concerns about the relevance of his experience as a Financial Analyst at the Bonsucesso Bank to the nominated occupation.  It explained that a Financial Analyst, in Australia, is defined in ANZSCO as being an occupation falling within Unit Group 2211 – Accountants – that plans and provides systems and services relating to the financial dealings of organisations and individuals, and advises on associated record-keeping and compliance requirements.   By way of response, the applicant told the Tribunal that his study and subsequent employment experience as a Financial Analyst at the Bonsucesso Bank was directly related to his nominated occupation, rather than that of an Accountant. He described the tasks he undertook as a Financial Analyst with the Bonsucesso Bank on a daily basis, and how they aligned with the tasks typically undertaken by a Financial Investment Adviser as set out by the ANZSCO.  He provided the Tribunal with a specific example of how he worked with a high net client associated with the Bank and proceeded through the financial planning and advising stages of: client engagement; research and financial data analysis in order to develop investment strategies; and strategy implementation, to ensure a good return for his client as well as the bank.

26. The Tribunal notes that the oral and documentary evidence before it reflects that in 2010, the applicant attained Certification from the Association of Financial and Capital Market Organisations, which is relevant to the Financial Investment Adviser Industry in Brazil.

27. The Tribunal has considered the evidence of the tasks performed by the applicant as a Financial Analyst of the Bonsucesso Bank against the tasks of the nominated occupation specified in ANZSCO. The Tribunal is satisfied, on the evidence before it, that this employment experience can be used to meet the requirement in cl.187.234(c)(iii).

28. The Tribunal has considered the documentary and oral evidence of the tasks performed by the applicant as a Financial Associate of the Bonsucesso Bank against the tasks of the nominated occupation, as described by ANZSCO. The Tribunal is satisfied, on the evidence before it, that the applicant’s experience as a Financial Associate with the Bonsucesso Bank can be used to meet the requirement in cl.187.234(c)(iii).

29. The evidence before the Tribunal also reflects that the applicant has, since September 2017, worked for Mortgage Choice Financial Planning as an Associate Financial Adviser.  At the time of his visa application (February 2019), this experience amounted to 17 months.

30. The Tribunal acknowledges the oral evidence of the applicant’s employer. Mr Sawyer is supportive of this application and has found in the applicant an employee whom he believes has the relevant qualifications, skill set and experience for the position.

31. Taking into account all of the evidence before it, including evidence that was not previously available to the delegate at the time of decision, the Tribunal is satisfied that the applicant has demonstrated that he has the qualifications in ANZSCO to perform the occupation of Financial Investment Adviser, and, (at the time of application) the applicant had been employed in the occupation for at least 3 years, on a full time basis, at the skill level required for the occupation.

32. Therefore, cl.187.234 is met.

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

    DECISION

34. The Tribunal remits the applications 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

    Nicola Findson

    Member