Lago (Migration)

[2022] AATA 3624

Lago (Migration) [2022] AATA 3624 (19 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amedeo Lago
Miss Vanusca Garberino
Ms India Lago

CASE NUMBER:  1929464

HOME AFFAIRS REFERENCE(S):          BCC20184371123

MEMBER:George Hallwood

DATE:19 October 2022

PLACE OF DECISION:  Adelaide

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 19 October 2022 at 3:18pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – office manager – full-time employment in nominated occupation for at least 3 years and skill level – qualifications necessary to perform tasks – employment history – members of family unit – 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

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 8 October 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 stream, or the Direct Entry 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 Office Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.234 of Schedule 2 to the Regulations because they were not satisfied the applicant had been employed in the nominated occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation.

6. The applicants appeared before the Tribunal on 19 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ali Abolhossani, the General Manager of the nominator.

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 primary applicant meets the requirements of cl 187.234 of the Regulations.

   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. 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.

11. 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 18/043. 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.

12. Based on the application and the relevant instruments the Tribunal is satisfied that:

    ·     The applicant was not specified in the exempt class of person listed in IMMI 18/045; and

    ·     The applicant obtained the necessary qualification in Australia.

13. The Tribunal must therefore consider whether the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation Office Manager – ANZSCO code 512111.

14. ANZSCO provides that Office Managers organise and control the functions and resources of offices such as administrative systems and office personnel. ANZSCO provides an indicative skill level: “Most occupations in this unit group have a level of skill commensurate with the qualifications and experience …  In Australia: AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2) … At least three years of relevant experience may substitute for the formal qualifications listed.

15. The applicant provided copies of his Diploma of Business issued on 16 February 2016 under the Australian Qualification Framework by Sheffield College and a Diploma of Leadership and Management issued on 10 May 2017 under the Australian Qualification Framework by Queensford College. The Tribunal is satisfied on the basis of these qualifications that the applicant has the qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation.

16. As the application was made after 18 March 2018, and the applicant is not an exempt person, he 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.

17. The applicant had, at the time of application, 27 months of employment as an Office Manager consisting of: Office Manager full time 27 November 2017 to 8 October 2018 with Calpeda Pumps Pty Ltd, and Office Manager full time 1 July 2016 to 17 November 2017 with ACT Joinery & Building. This employment is corroborated in written statements of support from the General Manager of Calpeda Pumps Pty Ltd, Mr Ali Abolhassani and, the Director of ACT Joinery and Building, Mr Nick De Cicco.

18. In describing his employment history, the primary applicant spoke of his work at Basso Franco Lucernari, a skylight and smoke evacuator manufacturer in Italy. He worked there from 1995 until 2003 with his final two years full-time as Office Manager linking the administration of the business with manufacturing and warehousing. The Tribunal is satisfied that Mr Lago’s description of those duties coincide with the tasks listed for Office Manager – in ANZSCO code 512111. The Tribunal is also satisfied that Mr Lago’s oral evidence is credible, with his descriptions of his previous work history in the interest of honesty often counter to his own interests.

19. On the basis of his work history including his employment as an Office Manager with Calpeda Pumps Pty Ltd, ACT Joinery and Building, and Basso Franco Lucernari the Tribunal is satisfied that at the time of application the primary applicant had worked as an Office Manager full-time, and at the level of skill required for the occupation, for a period of four years and three months.

20. Therefore, cl 187.234 is met.  

    CONCLUDING PARAGRAPHS

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

22. The secondary applicants visa applications were refused because they were not members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the primary applicant’s application is being reconsidered, the Tribunal recommends that the secondary applicants applications also be reconsidered.

    decision

23. The Tribunal remits the applications 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.

    George Hallwood
    Member