Liu (Migration)

[2017] AATA 946

Liu (Migration) [2017] AATA 946 (7 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yi-Wen Liu

CASE NUMBER:  1602596

DIBP REFERENCE(S):  BCC2015/1445175 EGO8BM9Y2Z

MEMBER:Glen Cranwell

DATE:7 June 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 07 June 2017 at 1:41pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry Stream – Agricultural Technician – Skills, qualification, employment background – ANZSCO generic tasks – Education qualifications not related to position – Limited relevant work experience

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, 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 Immigration 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 to the Department of Immigration for the visa on 20 May 2015. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Agricultural Technician. 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 visa because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations.

6. The applicant appeared before the Tribunal on 1 June 2017 to give evidence and present arguments.

7. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 this criterion, the relevant classes of exempt persons have been specified in IMMI 12/060, and the occupations and relevant assessing authorities have been specified in IMMI 12/096.

11. In this case, having regard to the appropriate legislative instruments, the Tribunal finds that neither clause (a) nor (b) are applicable. Consequently the focus of the Tribunal’s consideration is whether the applicant met the requirements of cl.187.234(c) at the time of application.

12. The applicant’s nominated occupation was Agricultural Technician (ANZSCO 3111-11).  The ANZSCO skill level for Agricultural Technician is as follows:

    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 above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

13. The Tribunal notes that cl.187.234(c) requires that the qualifications must be viewed in relation to the tasks of the occupation. 

14. In the ANZSCO dictionary the generic tasks of the occupation of Agricultural Technician are described as:

    oexamining topographical, physical and soil characteristics of farmland to determine its most effective use and identify nutrient deficiencies

    oassisting in developing new methods of planting, fertilising, harvesting and processing crops to achieve optimum land usage

    oidentifying pathogenic micro-organisms and insects, parasites, fungi and weeds harmful to crops and livestock, and assisting in devising methods of control

    oanalysing produce to set and maintain standards of quality

    oinspecting livestock to gauge the effectiveness of feed formulae

    oassisting in controlled breeding experiments to develop improved crop and livestock strains

    oarranging the supply of drugs, vaccines and other chemicals to Farmers and Farm Managers, and giving advice on their use

    ocollecting and collating data for research

    oplanning slaughtering, harvesting and other aspects of production processes

    omay advise producers on farming techniques and management

15. The specific tasks for an Agricultural Technician are described as:

    Performs tests and experiments, and provides technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing.

16. The applicant provided evidence that, at the time of application, she had a Bachelor of Education from National Chi Nan University.

17. The Tribunal has considered the applicant’s academic transcript listing the subjects she studied in her Bachelor of Education, and has considered her written and oral evidence that her qualification relates to policy and administration.  However, the tasks listed in ANZSCO as relevant to the occupation Agricultural Technician are focused on technical skills in an agricultural context, not policy and administration skills in a general context. The Tribunal does not accept these subjects are sufficiently relevant to the tasks of the occupation Agricultural Technician. The Tribunal considers that where ANZSCO requires a level of qualification it requires the qualification to be relevant to the occupation. The Tribunal does not accept the Bachelor of Education is a qualification relevant to the performance of the tasks set out in the ANZSCO description for Agricultural Technician.

18. In relation to relevant experience as a substitute for formal qualifications, the applicant provided the following work history with her visa application:

    ·6 February 2013 - 20 October 2014: Project Administrator, Cherry Co Pty Ltd;

    ·July 2012 - February 2013: Administration Officer, Cherry Co Pty Ltd;

    ·March 2012 - June 2012: Fruit Sorter, Macadamias Australia;

    ·November 2010 – June 2011: Fruit Packer, Barbera Farm;

    ·September 2008 – June 2010: After School Teacher, Yo-Show Education Instruction.

19. At the hearing, the applicant agreed that her work as an after school teacher was not relevant to the position of Agricultural Technician.

20. The Tribunal does not accept that the applicant’s work as a fruit packer was relevant to the position of Agricultural Technician.  While the applicant may have obtained some superficial familiarity with fruit during her employment with Barbera Farm, there is nothing before the Tribunal to suggest that her work was focussed on the technical skills listed in the ANZSCO dictionary.  A fruit packer is a position requiring a minimal skill level.  The applicant’s submission that she was required to identify and remove bad fruit involves no more skill than the average shopper engages on a visit to a green grocer.

21. While the Tribunal has doubts about the relevance of aspects of the applicant’s remaining work experience, it does not in any event total 3 years of relevant experience at the time of application.  The Tribunal is unable to take into account the applicant’s work experience obtained since the time of application. 

22. The Tribunal finds that the applicant does not have the necessary qualifications listed in ANZSCO as being necessary to perform the tasks of Agricultural Technician.  She therefore does not meet the requirements of cl.187.234(c).

23. Therefore, cl.187.234 is not met.

24. The applicant has only sought to satisfy the criteria for a Subclass 187 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.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Glen Cranwell
    Member