Evans (Migration)

[2018] AATA 3450

Evans (Migration) [2018] AATA 3450 (7 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Rhiannon Marie Evans
Mr James Edward Broughton Shearman

CASE NUMBER:  1805376

DIBP REFERENCE(S):  BCC2017/3641691

MEMBER:Karen Synon

DATE:7 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 07 August 2018 at 10:19am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Primary School Teacher - Whether an assessing authority had assessed the applicant’s skills as suitable at the time of application – Applicant had not undertaken the relevant skills assessment - Where the applicant mistakenly believed membership of the Victorian Institute of Teaching was sufficient – Skills assessment must come from the relevant assessing authority – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cls 186.234, 186.311

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 on 22 February 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 5 October 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Primary School Teacher’.  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.186.234 of Schedule 2 to the Regulations because at the time of application, an assessing authority had not assessed the applicant’s skills as suitable for the occupation.

6. On 26 June 2018 the applicants were invited to a hearing to give evidence and present arguments on 31 July 2018.  On 29 June 2018 the response to hearing invitation form was provided indicating that both applicants would attend the scheduled hearing.  On 17 July 2018 a request to postpone the hearing was received on the basis that the second named applicant was overseas working and could not return for the scheduled hearing on 31 July.  It was stated that the second named applicant would “very much appreciate the opportunity to attend in person” however if this is not possible would be available to attend via video link.  On 30 July 2018 the Tribunal responded advising that as the primary review applicant is in Australia, the hearing will proceed as scheduled however the Tribunal will take telephone evidence from the secondary applicant.  The applicants were further advised that this is a straight forward hearing and the only matter is whether the applicant provided evidence of a suitable skills assessment from the authorised assessing body (which is the Australian Institute for Teaching and School Leadership) at the time she lodged her visa application.

7. The applicant appeared before the Tribunal on 31 July 2018 to give evidence and present arguments.  The second named applicant gave evidence via telephone from the United Kingdom.  The Tribunal also received oral evidence from Mary Lucas, the Principal of the applicant’s employing school.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is cl.186.234.

10. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

11. For this criterion, the relevant class of exempt persons has been specified in IMMI 12/060.

12. For the skills assessment, the relevant assessing authorities for each occupation are specified in legislative instruments.  For visa applications made on or after 28 October 2013, this 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. In addition, if not an exempt person, the applicant must have been employed in the occupation for three years.  Where the visa application was made on or after 1 July 2013, this employment must have been on a full time basis and at the level of skill required for the occupation.

14. On the evidence before the Tribunal, the applicant nominated the occupation of ‘Primary School Teacher’ which is a specified skilled occupation.  For that occupation, the relevant assessing authority is the Australian Institute for Teaching and School Leadership (AITSL).

15. The visa application records that the applicant answered ‘no’ to the question ‘does the applicant have a suitable skills assessment from the relevant assessing authority, which is not for a Subclass 485 (Temporary Graduate) visa?’.

16. In a written submission to the Tribunal the applicant stated that although she understands the grounds for the primary decision based on the fact that she did not provide evidence obtaining a positive skills assessment from the relevant assessing authority and both understands and accepts the decision, a personal administrative error led to her omitting key information regarding her application when she uploaded her supporting documentation.  In particular she asserted that she believes that an assessing authority had in fact assessed her skills are suitable for her occupation because she is a registered member of the Victorian Institute of Teaching (VIT) and her requisite skills and qualifications have been assessed by VIT which found her suitable to teach in the State of Victoria.  Her skills and qualifications were assessed by VIT on 16 November 2016 and without this skills assessment she would not been able to legally fulfil the teaching roles she has been holding in Victoria over the past 12 months.

17. In support of her application for review the applicant also provided:

    ·     A Statement of Service from Bessemer Grange Primary School London dated 11 July 2017 recording that the applicant was a staff member of the school from September 2014 to August 2016 in the capacity of a full-time classroom teacher;

    ·     A copy of the applicant’s certification of her award of a Bachelor of Arts (Honours) in Primary Education with English issued by Newman University, Birmingham and the corresponding transcript of results;

    ·     A letter issued by St John Bosco Catholic Primary School dated 28 February 2017 stating that the applicant was employed at this primary school from 2 July 2012 until 31 August 2014.  The letter is unsigned and unattributed;

    ·     A copy of a card issued by the Victorian Institute of Teaching recording that the applicant is a Provisionally Registered teacher.  The card is valid until 30 September 2018;

    ·     A letter of offer of employment to the applicant issued by St. Paul Apostle North Primary School, Endeavour Hills dated 13 April 2017 as a full-time teacher on an ongoing basis commencing 18 April 2017; and

    ·     A copy of a letter issued by Prospero Teaching dated 29 March 2017 recording that the applicant worked for this organisation on a long-term contract from 5 September 2016 until 6 December 2016 at Holy Trinity Primary School (Wimbledon).

18. During the hearing the Tribunal explained that the issue before it is whether the applicant had provided evidence, with her visa application, of a successful skills assessment from the relevant assessing authority, which is the assessing authority specified by the Minister in a legislative instrument, which in the case of the occupation of a Primary School Teacher, is the Australian Institute for Teaching and School Leadership (AITSL).  The Tribunal noted that while she had provided a copy of her registration as a teacher with the Victorian Institute of Teaching this could not satisfy the time of application criterion to provide a successful skills assessment issued by the body specified in the instrument.

19. Invited to make any oral submissions the applicant said she completely understands what the Tribunal is saying and she made an administrative error.  The applicant explained that she is now midway through teaching her grade 5 class and feels she would be letting them down to leave mid-year and their progression would suffer.  She is part of the leadership of the school so would also be letting her teaching colleagues down.  She feels responsible not only for her pupils, but their parents and the staff.

20. She loves the country and would be sad to leave behind her friends but her students will be the hardest people to leave mid-year.  The applicant also said that VIT has seen all other documents and have registered her to teach in Victoria and she thought this would be sufficient.

21. The second named applicant, who was present throughout the hearing via telephone from overseas, noted that the recognition from VIT is not the correct assessing body and it seems there is very little they can do.  While they would have liked a different outcome, both of their concerns are about the impact on the children the applicant teaches and she goes above and beyond in her teaching duties and in her leadership duties in the school.  He understands that because the skills assessment has to be done before the visa application, there appears to be very little they can do now.  They do not know what other options are available to them at this time but he respects the Tribunal’s position.

22. The Tribunal also took evidence from the Principal of St Paul Apostle North Primary School, Endeavour North, Ms Mary Lucas who explained that she employed the applicant mid last year when the school was in a very difficult situation where a teacher had left and the parent body were very dissatisfied with losing a teacher half way through the year.  It was a very difficult class but the applicant “has absolutely worked miracles at their school” and it would be such a loss to their school for her to have to leave.  Their parents, students and staff would be very distressed.  Ms Lucas asked the Tribunal if it had any advice about a way forward but it said it could not give any migration advice.

23. The Tribunal explained that the other way to fulfil this requirement is if the applicant is a member of a class of persons who are exempt.  The Tribunal explained that the following classes of people are exempt for the purposes of clause 186.234 from having to provide a skills assessment and asked if she believes she falls under any of these classes:

    CLASS ONE

    ·a Minister of Religion;

    ·a Researcher, Scientist or Technical Specialists at ANZSCO Skill Levels 1 or 2 who have applied to occupy a position nominated by an Australian government agency;

    ·an Academics who has applied for the visa to occupy a position as nominated by university in Australia and who is to be employed at an Academic Level of A, B, C, D, or E as a University Tutor, a University Lecturer, or Faculty Head

    CLASS TWO

    ·Persons were nominated for a visa for a position with their nominated earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate.[1]

    CLASS THREE

    ·Persons who are currently in Australia as the holder of a subclass 444 or 461 visa been working with the nominating employer in their nominated occupation for at least two years (excluding any periods of unpaid leave) in the last three years immediately before making their Visa application.

    [1] Which is income in excess of AUD$180,000 from 1 July 2018 < >

    Invited to comment on whether the applicant believes she fits into any of these specified classes of persons of exemption she said she did not.

24. As the applicant is not in a class of exempt persons specified in the relevant Legislative Instrument she does not satisfy cl.186.234(3).

25. Asked if she understands that the Tribunal cannot make a decision in her favour she said she did but reiterated her deep concern about leaving her students without a teacher mid-way through the school year.

26. As the applicant does not satisfy cl.186.234(2) or (3) she does not satisfy cl.186.234 in its entirety.

27. The applicant has only sought to satisfy the criteria for a Subclass 186 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.

28. In relation to the second named applicant, the Tribunal notes that he applied on the basis of being a member of the first named applicant's family unit.  As the Tribunal has found that the first named applicant does not meet cl.186.234, the secondary applicant is also unable to meet the requirements of 186.311(a), which requires that he be a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    Department note

29. The applicant and her school principal raised the issue of whether it would be possible for her to remain in Australia until the end of the school year.  The Tribunal said it does not issue bridging visas or determine how long a person has to leave the country after a visa is refused but she should put her particular circumstances to the department, with the support of her school principal, highlighting the deleterious affect her departure mid-term or mid-year would have on her grade 5 children.  Given the applicant’s sincerity, her obvious highly valued leadership role in the school and the fact that she is registered to teach in Victoria, the Tribunal is of the view that if it is within the department’s purview to do so, such a request should be favourably considered.

    DECISION

30. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Karen Synon
    Member