Landrum (Migration)

[2020] AATA 1620

Landrum (Migration) [2020] AATA 1620 (11 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robyn Wayne Landrum

CASE NUMBER:  1829633

HOME AFFAIRS REFERENCE(S):          BCC2018/419156

MEMBER:Stavros Georgiadis

DATE:11 May 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the 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 11 May 2020 at 4:08pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –­ Direct Entry stream – Photographer – qualifications necessary to perform tasks of occupation – no formal qualifications – at least five years of relevant work experience – 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 January 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 (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 applicant is seeking the visa in Direct Entry stream, to work in the nominated occupation of Photographer (ANZSCO 211311).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations as the delegate considered the applicant did not have the relevant formal qualifications or sufficient relevant work experience listed in ANZSCO as being necessary to perform the tasks of the nominated occupation.

6. The applicant appeared before the Tribunal on 11 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current employer Mr Shaun Patterson from the partnership business trading as Winkipop Media.

7. The applicant was represented in relation to the review by his 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 satisfies the criteria in cl.187.234 for the grant of the Subclass 187 visa.

   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 (not 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.

12. 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.

13. The application for the Subclass 187 visa in this case was lodged under the Direct Entry stream.  The criteria set out in cl.187.234 must be satisfied by the applicant at the time of visa application on 25 January 2018. 

14. For the grant of the visa, the applicant must satisfy one of the three alternatives (a to c) set out in cl.187.234 of Schedule 2 of the Regulations which provides 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.

15. The relevant 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.

16. At the hearing, the applicant told the Tribunal that his remuneration is in the order of $54,000 per year for his work as a Photographer with the business trading as Winkipop Media. Accordingly, the applicant is not exempt from the skills requirement as a person under Class 1, as the level of remuneration is lower than the current Australian Tax Office top individual income tax rate which is significantly higher than the remuneration level paid to the applicant.

    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.

17. The Tribunal has had regard to the applicant’s Movement Details. From this, together with the oral evidence at hearing, the Tribunal finds that the applicant is not a person under Class 2 above as he has not held a Subclass 444 or 461 visa. The Tribunal also accepts the oral evidence that the applicant has never held a Subclass 485 visa.

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

19. At the hearing, the applicant confirmed that the position identified in the application is for the occupation of Photographer.  The role of Photographer (ANZSCO 211311) is not an occupation specified by the Minister in the relevant instrument of the Register of Instruments for the purposes of cl.187.234(b)(i). Therefore, cl.187.234(b) does not apply.  

20. As neither paragraph subclauses 187.234(a) nor (b) apply, the applicant must establish that he 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. 

21. The Tribunal notes from the delegate’s decision that at the time of application, under the ANZSCO database classification guide, the occupation of Photographer 211311 requires a level of skill (Skill Level 1) commensurate with a bachelor degree or higher qualification OR at least 5 years relevant employment experience as substitute for the qualification:

    “… PHOTOGRAPHERS operate still cameras to take photographs.
    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. The occupation in this unit group requires high levels of creative talent or personal commitment and interest as well as, or in place of, formal qualifications or experience (ANZSCO Skill Level 1).

22. The Tribunal accepts that the tasks for this occupation include the following:

    • consulting with clients to determine objectives of photographic assignments
    • studying requirements of assignment and selecting type of camera, film, filter and lighting
    • working from a studio, and transporting and setting up equipment at assigned locations
    • measuring light levels and determining exposure
    • adjusting camera angles, aperture settings and subjects to achieve desired composition
    • adjusting lighting and filters to accentuate highlights and colours
    • mixing photographic chemicals, processing film and developing prints
    • manipulating images using digital imaging techniques and creative darkroom techniques such as adjusting exposure and development times
    may make enlarged prints, and mount and frame prints.

23. From a consideration of the applicant’s work experience undertaken and described at the hearing, and the submissions made in respect of the applicant’s “high levels of creative talent or personal commitment and interest,” the Tribunal is satisfied that the duties of the nominated position correspond to those of the occupation of Photographer. Accordingly, the applicant’s qualifications or relevant experience must satisfy the requirements of cl.187.234(c) as being necessary to perform the tasks of the occupation.

24. The applicant’s accepted oral evidence and submission is that he has not, at any stage, undertaken any formal qualifications for the occupation of Photographer.  Therefore, the applicant relies on at least five years of relevant experience that may substitute for the formal qualification, or high levels of creative talent or personal commitment and interest as well as, or in place of, formal qualifications or experience (ANZSCO Skill Level 1). The applicant submits that at the time of application, he satisfied the Skill Level 1 requirement.

25. The applicant refers to the finding of 32 months of relevant experience as a Photographer accepted by the delegate in the decision of 20 September 2018 (page 4) and has provided further evidence in respect of his employment with Winkipop Media which at the time of that decision had not been accepted by the delegate. The Tribunal also notes the delegate’s comments regarding the “no work rights” condition 8101 attached to the applicant’s Subclass 601 and 600 Visitor visas from June 2013 to February 2018.

26. The Tribunal has had regard to the applicant’s resume / Curriculum Vitae and accepts that 32 months of relevant experience prior to application, as found by the delegate, has been substantiated.  The Tribunal accepts from the applicant’s description of his work as Director of Stills Photography for the project, Extraordinary Aliens together with the letter of 22 January 2018 from Tom Vincent (founder, Extraordinary Aliens) that the applicant has undertaken 22 months of relevant experience on ‘The Aquanauts’ from August 1998 to May 2000 from this project alone.

27. At the hearing, the applicant confirmed that he has been working with his current employer, Winkipop Media, for several years having commenced in 2013. The oral evidence provided to the Tribunal by the applicant’s current employer, Mr Patterson, is that the applicant commenced work with that business in March 2013 and that since that time to date, he has been engaged on average, for 35 hours per week as a Photographer. The Tribunal has been provided with cheque stubs dating to when the applicant commenced with Winkipop Media in 2013 when hired (initially) as a consultant Photographer. He was then engaged as an ongoing employee from February 2018 (once a Bridging visa was approved with no work limitations) arising from an employment contract signed by Mr Lindrum on 28 September 2017. 

28. From the cheque stubs provided, the aggregate payments from 30 April 2013 made to the applicant are recorded as $213,510.76 up to the point of engagement as an ongoing employee (paid 16 March 2018). This is set out in a spreadsheet summary provided to the Tribunal by the applicant and is broadly consistent with the level of remuneration of $54,000 mentioned by the applicant in his oral evidence. This evidence, together with payslip details and other evidence provided (including the applicant’s superannuation statement from AustralianSuper for April 2020), collectively corroborates  the oral evidence given at hearing that the applicant has been engaged with Winkipop Media for 4 years and 10 months prior to lodging his visa application in January 2018, and the Tribunal so finds.  It is evident therefore, considered together with the other work experience discussed above, that the applicant has undertaken at least five years of relevant work experience as a Photographer, prior to lodging his visa application.

29. From this, the Tribunal is satisfied that at the time of lodging the application, the applicant’s relevant work experience substitutes for the formal qualifications as being necessary to perform the tasks of the nominated occupation of Photographer. 

30. Accordingly, the applicant meets cl.187.234(c).

31. The Tribunal notes that at the time of application the applicant had been employed in the nominated occupation for at least 3 years on a full-time basis, at the skill level required for the occupation.  However, this criterion is not required in circumstances (as here) for applications lodged before 18 March 2018. 

32. Therefore, cl.187.234 is met.

33. The Tribunal notes (only) that the current ANZSCO Skill Level 2 has reduced from that required (Skill Level 1) at the time of application.

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

    DECISION

35. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the 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