Karmjit Kaur (Migration)

Karmjit Kaur (Migration) [2020] AATA 1627 (18 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Karmjit Kaur
Mr Gurjot Singh Sandhu
Mr Ishmeet Singh Sandhu
CASE NUMBER:  1838064
HOME AFFAIRS REFERENCE(S):          BCC2018/1123722
MEMBER:Stavros Georgiadis
DATE:18 May 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration in respect of all applicants, 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 18 May 2020 at 5:50pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nurseryperson – qualifications necessary to perform tasks of occupation – Certificate IV in Horticulture – recognition of prior learning – work-site interview – assessment of written and other technical tasks – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.234

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicants applied for the visas on 9 March 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
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 Nurseryperson (ANZSCO 362411).
The delegate refused to grant the visas because the applicant did not meet cl.187.234(c) of Schedule 2 to the Regulations as the delegate considered she did not have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation and the delegate found that the applicant had only one year and four months of relevant part-time work experience at the required skill level for the nominated occupation. The delegate concluded therefore, that the applicant did not have at least three years of relevant experience that may substitute for the formal qualification.
The applicant appeared before the Tribunal on 15 May 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary applicant satisfies the criteria in cl.187.234 for the grant of the Subclass 187 visas.
Skills and qualifications
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.
For visa applications made on or after 18 March 2018 (not the case here), 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.
For this criterion, the relevant classes of exempt persons have been specified in IMMI 12/060 of the Register of Instruments: Business visas, and the occupations and relevant assessing authorities have been specified in IMMI12/096 of that Register of Instruments. For the purpose of 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. The applicant has previously held a Subclass 485 visa granted on 8 March 2013 to 8 September 2014.
The application for the Subclass 187 visas was lodged on 9 March 2018 under the Direct Entry stream. The criteria set out in cl.187.234 must be satisfied by the applicant at the time of application.
For the grant of the visa, the applicant must satisfy one of the three alternatives (a to c) below as set out in cl.187.234 of Schedule 2 of the Regulations as follows:
cl.187.234
At the time of application:
(a) the applicant was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph; or
(b) all of the following requirements were met:
(i) the applicant’s occupation is specified by the Minister in an instrument in writing for this subparagraph;
(ii) the applicant did not obtain the necessary qualification in Australia;
(iii) the applicant’s skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph (i) as the assessing authority for the occupation;
(iv) the assessment was not for a Subclass 485 (Temporary Graduate) visa;
(v) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment - the period had not ended;
(vi) if subparagraph (v) did not apply - not more than 3 years had passed since the date of the assessment; or
(c) if neither paragraph (a) nor (b) applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.
The legislative instrument refers to the following classes of persons as exempt from skill requirement for the purposes of 187.234(a) of the Regulations:
Class 1 - Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Tax Office’s top individual income tax rate.
At the hearing, the applicant said that her earnings for the nominated occupation at the time of application were around $40,000 per year but would be $54,000 per year once her visa is granted. The Tribunal accepts the oral evidence provided in this regard. Either way, the applicant is not exempt from the skills requirement as a person under Class 1, as the accepted level of remuneration is lower than the current Australian Tax Office top individual income tax rate.
Class 2 - Persons who hold a Subclass 444 – Special Category visa; or Subclass 461 – New Zealand Citizen Family Relationship (Temporary) visa, and who have been working in their nominated occupation for their nominating employer for at least two years (excluding any periods of unpaid leave) in the previous three years, immediately before applying for their Subclass 187 – Regional Sponsored Migration Scheme visa.
The applicant responded when asked that she has not held any of the above visa classes and the Tribunal accepts the applicant’s oral evidence in this regard. The Tribunal finds that the applicant is not an exempt person under Class 2 above as she does not hold a Subclass 444 or 461 visa.
Accordingly, the applicant does not meet cl.187.234(a).
At the hearing, the applicant confirmed that the position identified in the application is for the occupation of Nurseryperson (ANZSCO 362411). This is an occupation specified by the Minister in an instrument in writing [IMMI12/096 of the Register of Instruments] for the purposes of cl.187.234(b)(i). However, with regard to cl.187.234(b)(ii), the Certificate IV qualification relied upon by the applicant in these proceedings was awarded in Australia and therefore, cl.187.234(b) does not apply as not all the requirements listed in cl.187.234(b) are met.
As neither subclauses 187.234(a) nor (b) apply, the applicant must establish that she has qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation, or relevant experience in the alternative, that may substitute for the formal qualification: cl.187.234(c). The Australian and New Zealand Standard Classification of Occupations (ANZSCO) sets out:
“Most occupations in this unit group (3624 Nurserypersons) have a level of skill commensurate with an Australian Qualifications Framework (AQF) Certificate III including at least two years of on-the job training, or AQF Certificate IV (ANZSCO Skill Level 3). At least three years of relevant experience may substitute for the formal qualifications.”
The applicant provided the following documents in response to whether she meets the skill level requirement set out in ANZSCO:
·Diploma in General Nursing & Midwifery obtained in India in October 2006.
·Certificate III in Hairdressing issued by Edward Beale on 15 June 2011.
·Certificate IV in Hairdressing issued by Edward Beale on 12 August 2011.
·Diploma of Hairdressing Salon Management issued by King Edward College on 2 July 2012.
·Certificate IV in Small Business Management issued by Melbourne City Institute of Education on 31 October 2012 and accompanying letter of the same date setting out that the course was completed on a full-time basis from April 2012 to October 2012
·Diploma of Management issued by Melbourne City Institute of Education on 1 May 2013 and accompanying letter of the same date setting out that the course was completed on a full-time basis from October 2012 to April 2013.
·Advanced Diploma of Business certificate issued by Technical Education Development Institute on 7 July 2014 and accompanying letter from the institution of the same date setting out that the applicant completed the course on a full-time basis from June 2013 to May 2014.
·Employment reference by the nominating employer, JK and MA Atkinson & Sons Pty Ltd dated 13 Jan 2017 regarding the applicant’s part-time employment from July 2011 to October 2012 (propagating tomato crops).
·Certificate IV in Horticulture issued by Access Group Training on 25 May 2017 together with an accompanying letter of congratulations from the institution.
·Form 80 personal particulars for assessment including character assessment form - on which the applicant advised her employment status as being ‘Unemployed’ from 12/2015 to the present, and also on which the applicant advised that the Certificate IV in Horticulture was completed from Feb 2017 to May 2017.
The delegate noted that no transcript was initially provided with the Certificate IV in Horticulture and that the number listed on the website for Access Group Training was disconnected. Accordingly, an email request was made to Access Group Training on 9 August 2018 to confirm the Certificate IV was issued by that institution, the duration of the course, and whether the applicant completed the course on a full-time or part-time basis. At the same time, a request was made to the applicant requesting academic transcripts for the Certificate IV in Horticulture and a letter from Access Group Training regarding aspects of the course’s duration and the applicant’s attendance to Access Group Training.
A response from Access Group Training received on 16 August 2018 summarises as follows:
·The Certificate IV was awarded to the applicant on 25 May 2017.
·The twelve units of competency awarded are listed in the Records of Results issued to the applicant.
·The ‘course was completed via RPL assessment pathway, enrolment commenced 1 May 2017 and RPL granted on 19 May 2017 being the end date.’
The applicant provided a Statutory Declaration on 5 September 2018 dated 4 August 2018 in which she sets out that she completed the Certificate IV in Horticulture through (Recognition of Prior Learning) RPL from Access Group Training in the month of February 2017; that she never attended classes for this course as it was not required for completion of the course through RPL; that the course was entirely assessed on the basis of the skills already held; and other matters.
The Tribunal has considered the written submissions made in respect of the application and has also had the benefit of carefully questioning and considering the applicant’s oral evidence provided at hearing. The Tribunal accepts the following evidence provided at the hearing which is consistent with the applicant’s aforementioned Statutory Declaration.
For the purposes of assessing the applicant’s skills for the said Certificate IV qualification, an assessor attended at the applicant’s workplace (JK & MA Atkinsons and Son Pty Ltd) where the applicant was assessed while working in the farm. She confirmed at hearing, when asked, that she was interviewed regarding a range of technical questions relating to her knowledge of Horticulture, relevant to this application. The applicant added that she was requested to complete some written tasks which she described at hearing as “assessments” in further consideration of the level of her skills and knowledge relevant to the occupation of Nurseryperson. She declares that she ‘paid their fee’ and started sending documents to Access Group Training in February 2017. She concluded that in May 2017 the assessor had ‘assessed my claims and issued the certificate’.
The applicant’s written submissions are that the Certificate IV in Horticulture was awarded after “Recognition of Prior Learning to the applicant but should be considered equal to the certificate completed through a fulltime setup.” In support of this, the applicant refers to AQF policy: >
The submission is that Recognition of Prior Learning is an assessment process that involves assessment of an individual’s relevant prior learning (including formal, informal and non-formal learning) to determine the credit outcomes of an individual application for course credit. The submission is that this is underpinned by the AQF definition of credit as follows:
… “Credit is the value assigned for the recognition of equivalence in content and learning outcomes between different types of learning and/or qualifications. Credit reduces the amount of learning required to achieve a qualification and may be through credit transfer, articulation, recognition of prior learning or advanced standing.” …
The applicant further submits that the nomination and RCB related to the application is approved; the applicant is in ongoing and fulltime employment with the same nominating employer (new employment letter noted) and that the letter supports that the applicant “has all the skills related to this occupation and the employer is … fully satisfied.”
The Tribunal also received oral evidence that the applicant’s RPL comprised of 6 units of study from other Certificate IV, Diploma and Advanced Diploma unit courses studied as part of other formal qualifications attained in Business, Small Business Management, Management and other qualifications relevant to this application (as listed earlier).
The Tribunal has considered all the available evidence before it discussed, and places weight, in particular, on the applicant’s oral evidence regarding the assessor’s undertaking of the work-site interview, and the assessment of written and other (oral) technical material relating to her knowledge and skill in Horticulture before granting the Certificate IV qualification. In light of the oral evidence and other evidence discussed and the written submissions in support of the applicant’s RPL, the Tribunal is satisfied that a component of the applicant’s Certificate IV in Horticulture resulted from Recognition of Prior Learning of 6 units undertaken as part of other relevant components of study. The Tribunal is further satisfied that the assessment of the remaining 6 units (12 in aggregate for the qualification), was undertaken as a combined process of the assessor’s interview, and assessment or written and other technical tasks in recognition of the applicant’s ANZSCO Skill Level 3 for the purposes of cl.187.234(c).
The Tribunal is satisfied that that the applicant’s knowledge and skill was acknowledged through credit transfer, articulation, recognition of prior learning or advanced standing described in the AQF above for the aggregate 12 units of competency for the award of the Certificate IV qualification and that this included further assessment and consideration by Access Group Training before the qualification was awarded to the applicant on 25 May 2017.
Accordingly, the applicant’s qualification of Certificate IV in Horticulture from Access Group Training satisfies the requirements of cl.187.234(c) as being necessary to perform the tasks of the nominated occupation.
The Tribunal finds therefore, that the applicant had the qualifications in ANZSCO to perform the occupation of Nurseryperson at Skill Level 3 required in ANZSCO 362411 for that occupation.
Therefore, cl.187.234 is met.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas in respect of all visa applicants, including those in the combined application claimed as members (spouse and son) of the same family group.
DECISION
The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration in respect of all applicants, 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.
Stavros Georgiadis

Member

[2020] AATA 1627

18 May 2020

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Immigration

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Appeal

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