He (Migration)

[2023] AATA 431

He (Migration) [2023] AATA 431 (9 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Liying He
Mr Jian Zhang
Miss Xinyi Zhang
Miss Yue Zhang

REPRESENTATIVE:  Mr Chao Liu (MARN: 0959913)

CASE NUMBER:  1935078

HOME AFFAIRS REFERENCE(S):          BCC2018/993202

MEMBER:Terrence Baxter

DATE:9 March 2023

PLACE OF DECISION:  Brisbane

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 criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.234 of Schedule 2 to the Migration Regulations1994.

Statement made on 09 March 2023 at 10:37am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry nomination stream – cook – qualification and skills – evidence of Australian qualification provided to former agent but not submitted to department with application or after request for further information – applicant not aware whether agent registered – current representative provided certificate to tribunal only after applicant invited to hearing – certificate verified by college – phone-in allegations not relevant to issues and given no weight – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 187.234(b), (c), 187.311

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 1 March 2018. 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 (Cth) (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 nomination stream, or the Direct Entry nomination stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry nomination stream, to work in the nominated position of Cook for Nozomi Group Pty Ltd.

5. The delegate refused to grant the visas on 27 November 2019 because the delegate found that the applicant did not meet cl 187.234 of Schedule 2 to the Regulations because, at the time of the application:

   a.Clause 187.234(a) did not apply because the applicant was not a person in a class of persons specified by the Minister in the relevant legislative instrument.

   b.Clause 187.234(b) had not been met because the applicant’s occupation was specified by the Minister in the relevant legislative instrument, it had not been demonstrated that the applicant had obtained the necessary qualification in Australia and the applicant’s skills had not been assessed as required.

   c.Clause 187.234(c) did not apply because cl 187.234(b) applied and the applicant did not have the option of relying on cl 187.234(c).

6. The delegate also found that the second named, third named and fourth named applicants could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl 187.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 12 December 2019.

8. The applicant appeared before the Tribunal by videoconference on 11 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

10. The applicants were represented in relation to the review by their registered migration agent, Mr Chao Liu. The representative attended the Tribunal hearing by videoconference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl 187.234 of Schedule 2 to the Regulations.

    Skills and qualifications

13. For applicants in the Direct Entry nomination stream, cl 187.234 requires that at the time of application:

    · cl 187.234(a) − the applicant is in a specified class of persons (exempt persons); or

    · cl 187.234(b) − 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

    · cl 187.234(c) − if neither of the above applies, the applicant had the qualifications listed in the Australian and New Zealand Standard Classification of Occupations (the ANZSCO) as being necessary to perform the tasks of the occupation.

14. 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 three years on a full-time basis and at the level of skill required for the occupation.

15. For this criterion, the relevant classes of exempt persons have been specified in IMMI 17/058, 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 three years after the date of assessment, that period must not have ended.

    Consideration of cl 187.234(a)

16. This clause exempts an applicant who is a person, at the time of the application, in a class of persons specified in the relevant legislative instrument from the skills and qualifications requirement. The Tribunal considers that the relevant instrument is IMMI 17/058. The Tribunal notes that, in the decision under review, the delegate referred to IMMI 15/083. That instrument was repealed by IMMI 17/058 with effect from 1 July 2017.

17. The following class of persons is specified in the instrument:

    Applicants for Subclass 187 visas who hold a Subclass 444 (Special Category) visa or a Subclass 461 (New Zealand Citizen Family Relationship) (Temporary) visa and who have been working in a nominated occupation for the nominating employer for at least two years (excluding any periods of unpaid leave) in the three years immediately before applying for the Subclass 187 visa.

18. The applicant agreed at the hearing that she did not hold a Subclass 444 (Special Category) visa or a Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) visa at the time of the application (1 March 2018).

19. Accordingly, the applicant does not meet cl 187.234(a).

    Consideration of cl 187.234(b)

20. This clause applies if the applicant’s occupation is specified by the Minister in the relevant instrument and the applicant did not obtain the necessary qualification in Australia. In those circumstances, the clause requires that the applicant’s skills have been assessed as suitable for the occupation by an assessing authority specified by the Minister in the relevant legislative instrument as the assessing authority for the occupation.

21. The applicant’s occupation of Cook is specified in the relevant instrument IMMI 12/096 with an ANZSCO code 351411. The specified assessing authority is TRA (Trades Recognition Australia). The ANZSCO classification for the occupation of Cook provides that the occupation is a Skill Level 3 occupation having a skill level commensurate with the qualifications of an AQF Certificate III including at least two years of on-the-job training or an AQF Certificate IV.

22. The delegate found that cl 187.234(b) applied because the applicant had not provided to the Department evidence that the applicant had obtained the necessary qualification in Australia. The evidence of the applicant’s skills and qualifications provided to the Department was as follows:

    a.A translated Professional Qualifications Certificate issued by the Chengdu (Republic of China) City Professional Skills Assessment Guidance Centre dated 28 August 2000 for the profession of Chef.

    b.A receipt issued by TRA to the applicant on 15 November 2019 for the sum of $1,000.

23. Based on that evidence, it is not surprising that the delegate found that cl 187.234(b) applied in respect of the applicant. Also, as the applicant had not provided evidence that her skills had been assessed by the TRA as required, it is not surprising that the delegate found that this clause had not been met by the applicant.

24. As the applicant had not provided evidence that she had obtained the necessary qualification in Australia, the delegate found that cl 187.234(c) was not available to the applicant.

    Evidence provided to the Tribunal

25. The applicant produced to the Tribunal prior to the hearing the following documents relevant to her skills and qualifications:

    a.A Certificate IV in Commercial Cookery issued to the applicant by the Victorian College of Vocational Excellence (the College) on 28 February 2018.

    b.A transcript of the applicant’s results for that Certificate.

    c.A Certificate III in Asian Cookery issued to the applicant by VETASSESS on 22 July 2021 together with a Skills Assessment Result and transcript.

    Evidence and submissions at the hearing

26. The Tribunal noted that the Certificate IV in Commercial Cookery had been issued prior to the date of lodgement of the visa application on 1 March 2018. The Tribunal asked the applicant why the Certificate IV had not been provided to the Department. The applicant stated that she was quite confused as to why the Certificate IV had not been provided. She said that she had provided all relevant documents to her former migration agent and that she was unaware exactly what documents he had provided to the Department.

27. The applicant said that she did not know the full name of her former migration agent, but that he was known to her as Neil. She said that the agent had been introduced to her by a friend and that she did not know much about him. She said that the agent had previously worked for a migration firm which had been closed down as a result of some breaches by the principal of the firm. She did not know whether Neil had an office because she met him only in cafés. She was not aware whether Neil was a registered migration agent and agreed that the visa application had been lodged without any reference to a migration agent.

28. The applicant stated that she had been issued with the Certificate IV prior to date of lodgement of the application and that she had handed all relevant paperwork to her agent. She said that she had trusted the agent to lodge the paperwork with the Department.

29. The Tribunal asked the applicant why she had applied to TRA for a skills assessment in November 2019 and paid a fee of $1,000 for the assessment, noting that she had provided evidence of holding the Certificate IV prior to the application. The applicant stated that the Department had requested further information about her application and that she had been allowed only 28 days to submit the further information. (The Tribunal notes that the Department had written to the applicant on 18 October 2019 requesting a copy of a skills assessment issued by the relevant skills assessment body.) The applicant stated that she had discussed this request with her agent who stated that the skills assessment was not required. However, she was aware that other Cooks and Chefs had undertaken skills assessments and she thought that it may assist her application if she provided an assessment.

30. The applicant stated that she had definitely been issued with the Certificate IV in Commercial Cookery prior to lodgement of the visa application and that she had paid a fee of $6,000 to the College. She said that she had registered with the College, provided documents and attended interviews to enable the Certificate IV to be issued. She said that she had handed the Certificate IV to her former agent and that she had been let down by him.

31. The applicant said that she was able to produce to the Tribunal screenshots of her correspondence with the former agent to establish that she had forwarded the Certificate IV to him prior to lodgement of the visa application. The Tribunal agreed to allow time after the hearing for the applicant to provide that evidence.

32. The Tribunal asked the applicant whether she was aware that the Certificate IV had been provided to the Tribunal on 21 December 2022, only three weeks before the hearing. She referred that enquiry to the representative.

33. The representative submitted that when he was engaged by the applicant after the refusal of the application on 27 November 2019, he unsuccessfully attempted to obtain relevant documents from the former agent. He submitted that he had requested the applicant to provide him with all relevant documents, but that he had not received the Certificate IV until sometime during 2022. He agreed that he had not provided the Certificate IV to the Tribunal until December 2022, after the applicant had been invited to the hearing.

34. On 20 January 2023, the Tribunal wrote to the applicant requesting that she provide evidence of payment of fees associated with the issue of the Certificate IV in Commercial Cookery.

    Evidence provided after the hearing

35. After the hearing, the applicant provided:

    a.Evidence of payment by her to the College of the sum of $6,000 on 29 September 2017.

    b.A translated email from the applicant to the former agent known as Neil dated 13 January 2018 advising that she had passed the assessment for the Certificate IV and that the Certificate IV should be issued in February of that year.

    c.A translated email from the applicant to the former agent dated 28 February 2018 attaching a copy of the Certificate IV in Commercial Cookery.

    d.An email from the College dated 24 January 2023 stating that the Certificate IV is genuine and authentic.

    Consideration of the evidence and submissions

36. The circumstances of this matter are quite remarkable. If the Certificate IV in Commercial Cookery is genuine, the question of whether cl 187.234(b) applies in respect of the applicant could have been resolved soon after the time of the lodgement of the visa application in March 2018. It could certainly have been resolved after the Department issued its request for further information in October 2019. However, the Certificate IV was never provided to the Department. It was, in fact, not provided to the Tribunal until 21 December 2022.

37. Given these unusual circumstances, the Tribunal has investigated thoroughly the circumstances surrounding the issue of the Certificate IV and the failure by the applicant and/or her former agent to provide the Certificate IV to the Department. The applicant has been adamant that she provided the Certificate IV to her former agent, and she attributes the failure to provide the Certificate IV to the Department to that agent.

38. Having regard to the applicant’s evidence at the hearing and to the documentary evidence provided to the Tribunal after the hearing, the Tribunal is satisfied that the Certificate IV in Commercial Cookery that was issued to the applicant on 28 February 2018 is genuine.

39. The Certificate IV was issued to the applicant prior to lodgement of the visa application. Accordingly, her qualifications had been obtained in Australia at the time of the application and cl 187.234(b) does not apply in this case.

    Consideration of cl 187.234(c)

40. This clause applies if, at the time of the application:

    a.The applicant’s occupation was not specified by the Minister in the relevant legislative instrument, or the applicant obtained the necessary qualification in Australia; and

    b.The applicant had the qualifications listed in the ANZSCO as being necessary to perform the tasks of the occupation.

41. This clause applies only if neither cl 187.234(a) nor cl 187.234(b) applies. In this case, the Tribunal has already found that neither of those subclauses applies.

42. As recorded in paragraph 21 above, the ANZSCO classification for the occupation of Cook provides that the occupation is a Skill Level 3 occupation having a skill level commensurate with the qualifications of an AQF Certificate III including at least two years of on-the-job training or an AQF Certificate IV. The applicant’s qualifications for the occupation consist of the Certificate IV in Commercial Cookery issued by the College. That qualification was obtained in Australia. The qualification meets the requirements listed in the ANZSCO as being necessary to perform the tasks of the occupation of Cook. Accordingly, the requirements of cl 187.234(c) are met.

43. Therefore, cl 187.234 is met in respect of the applicant.

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

45. The second named, third named and fourth named applicants have applied on the basis that they are members of the family unit of the applicant. Their application will also be determined on remittal to the Department for reconsideration in light of the Tribunal’s findings in relation to the first named applicant.

    Section 359AA of the Act

46. During the hearing, the Tribunal provided certain information to the applicant. That information was that in November 2019, a phone allegation had been made to the Department alleging:

    a.That the applicant was supposed to be working in Brisbane but had never worked there and was working at locations in Victoria; and

    b.That the applicant’s International English Language Testing System (IELTS) test was sat by someone else in Malaysia or Thailand and that she did not speak English at all.

47. The Tribunal explained to the applicant that this information could be relevant to other requirements of cl 187 of Schedule 2 to the Regulations, including cl 187.232(a) (that at the time of the application the applicant had competent English) and cl 187.233(5) (that the nominated position is still available to the applicant).

48. On two occasions, the applicant was offered an adjournment to respond to the information, but on each occasion did not request an adjournment. She provided a response to each of the allegations.

49. In accordance with the President’s Direction regarding the conduct of Migration and Refugee Reviews, the Tribunal proposes to restrict its review of the delegate’s decision to a consideration of the requirements of cl 187.234 of Schedule 2 to the Regulations. Accordingly, the Tribunal does not consider the information contained in the allegation to the Department to be relevant to its consideration of this matter and has placed no weight on that information.

    DECISION

1. 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 criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

   ·cl 187.234 of Schedule 2 to the Migration Regulations 1994.

   Terrence Baxter
   Member