Matusiewicz (Migration)

[2022] AATA 3603

Matusiewicz (Migration) [2022] AATA 3603 (14 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Magdalena Matusiewicz
Mr Bartosz Matusiewicz
Mr Gabriel Marek Matusiewicz
Mr Daniel Bartosz Matusiewicz

REPRESENTATIVE:  Mr Karol Nowak (MARN: 1280062)

CASE NUMBER:  1926258

HOME AFFAIRS REFERENCE(S):          BCC2019/1414302

MEMBER:Alison Mercer

DATE:14 October 2022

PLACE OF DECISION:  Melbourne

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 14 October 2022 at 10:47am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry scheme – hairdresser – skills and qualifications – certificates obtained by recognition of prior learning not recognised by departmental policy – policy went beyond requirement of legislation and is not in current version of manual – full-time employment in occupation for at least 3 years – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), Schedule 2, cl 187.234(c)

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 20 March 2019. 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 Hairdresser.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.234 of Schedule 2 to the Regulations, which required that, at the time of application, the applicant had the required skills and qualifications for her nominated occupation, or that she was exempt from having to do so. The delegate found that the applicant was not exempt under cl.187.234(a), did not have a positive skills assessment for her occupation and therefore did not meet cl.187.234(b), and that while she had an Australian Certificate III and Certificate IV in Hairdressing, they had been obtained by Recognition of Prior Learning (RPL) assessment, which the Department’s policy guidelines (set out in its Procedures Advice Manual, or PAM3) did not recognise. Therefore, she did not satisfy cl.187.234(c) and did not meet the criteria for a subclass 187 visa in the Direct Entry stream. The delegate found that the applicant had not made any claims to meet any other stream, and also refused to grant subclass 187 visas to the second, third and fourth named applicants (the applicant’s husband and sons) as they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 187 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 18 September 2019. It was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Karol Nowak, as their representative and authorised recipient for correspondence.

7. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

   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. The applicant must meet this requirement as her visa application was made on 20 March 2019.

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 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 3 years after the date of assessment, that period must not have ended.

    Is the applicant exempt under cl.187.234(a)?

12. As noted above, for the purposes of cl.187.234(a), IMMI 18/045 provides that only applicants in the following category are exempt from having to satisfy cl.187.234(b) or (c):

    …

    7 Exemptions to skills and qualification requirements for applicants for a Subclass 187 visa

    For the purposes of paragraph 187.234(a) of Schedule 2 to the Regulations, persons who:

    (a) hold a Subclass 444 visa or a Subclass 461 visa; and

    (b) 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 prior to the date of application for a Subclass 187 visa;

    are specified.

13. The Tribunal has reviewed the Department’s records for the applicant, and is satisfied that the applicant has never held a subclass 444 or 461 visa, and thus cl.187.234(a) does not apply in the circumstances of this case. The applicant must therefore cl.187.234(b) or (c).

    Does the applicant meet cl.187.234(b)?

14. This clause requires that, if the applicant’s nominated occupation is specified in the relevant instrument, and her qualifications for her occupation were obtained overseas, she must have had a positive skills assessment from the relevant Australian assessing authority for her occupation at the time that she made the visa application, and that skills assessment must not have been over 3 years old at that time, or have been issued for the purposes of a subclass 485 visa application.

15. The Tribunal has reviewed IMMI 12/096, and is satisfied that it contains the occupation of Hairdresser, for which the relevant Australian assessing authority is TRA.

16. The Tribunal is further satisfied that, in her visa application, the applicant indicated that she obtained a Certificate III and Certificate IV in Hairdressing in 2018 from Avante Education Pty Ltd in Australia, which (as discussed below) were obtained via RPL. The applicant also provided evidence of having undertaken an Italian qualification as a hairdresser. However, the applicant did not provide a positive skills assessment for the occupation of Hairdresser from the relevant Australian assessing authority, TRA.

17. Given the above, the Tribunal must find that the applicant does not meet cl.187.234(b).

    Does the applicant meet cl.187.234(c)?

18. This clause requires that both:

    (i)  the applicant's occupation was not specified by the Minister in an instrument in writing for subparagraph (b)(i), or the applicant obtained the necessary qualification in Australia; and

    (ii)  the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

19. As noted above, the applicant 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 her occupation prior to making the visa application.

20. The Tribunal is satisfied that the applicant’s occupation is specified by the Minister in the relevant instrument for the purposes of cl.187.234(b), IMMI 12/096, and she obtained her qualifications as a Hairdresser in Australia (or at least some of them), being her Certificate III and Certificate IV in Hairdressing, both issued by Avante Education Pty Ltd in October 2018.

21. The required Australian qualifications in ANZSCO for a Hairdresser are:

    …

    In Australia:

    • AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    …

22. The Tribunal has reviewed the Certificate IV in Hairdressing provided by the applicant. It indicates that it was issued by Avante Education Pty Ltd, an Australian registered training organisation (RTO) on 12 October 2018, certifying that the applicant is competent in 11 subjects, 10 of which were met through RPL.

23. As noted above, the delegate did not accept that this qualification met the requirements in ANZSCO as Departmental policy (as set out in Procedures Advice Manual 3 (PAM3)) as it stood at that time (July 2019) provided that a qualification obtained by RPL could not substitute for all of the course content in a credit transfer arrangement but could only apply to a small number of completed assessment items; and that where a decision maker was not satisfied the qualification genuinely reflected an appropriate level of assessment as evidence for skills acquired during a formal course of learning, then they could form the view that cl.187.234(c) was not met.

24. The Tribunal notes that this appears to have been removed from the current policy document used by the Department for cl.187.234(c) (as at October 2022). The Tribunal further notes that the plain wording of cl.187.234(c) requires only that the applicant obtained the necessary qualification in Australia, and had the qualification listed in ANZSCO as necessary to perform the tasks of the nominated occupation. PAM3 as it stood previously arguably asks the decision maker to go behind the qualification itself and question the basis upon which it was issued, and the Tribunal considers that this goes beyond the requirements of the legislation. In the Tribunal’s view, this is supported by the fact that the current version of PAM3 on cl.187.234(c) no longer contains a prohibition on considering qualifications obtained solely or partly through RPL.

25. Accordingly, the Tribunal finds that the applicant obtained a Certificate IV in Hairdressing in Australia, which is one of the qualifications listed in ANZSCO as required for the occupation of Hairdresser in Australia.

26. The applicant provided documentary evidence (including work references and payslips) to the Department of her employment as a Hairdresser prior to making her visa application, which indicates she had the following full time employment:

    ·1 May 2015 to 30 May 2017 – CC The Cutting and Colour Experts, United Kingdom;

    ·1 July 2017 to 30 August 2017 – Shade Hair and Beauty Studio, United Kingdom;

    ·1 September 2017 to 20 April 2018 -  Purpose Hair, United Kingdom;

    ·18 May 2018 to 12 December 2018 – Hairhouse Warehouse, Canberra Centre, Australia; and

    ·13 December 2018 to 19 March 2019 – Hairhouse Warehouse, Belconnen, Australia.

27. The Tribunal is satisfied that the applicant had therefore worked for over 3 years in her nominated occupation as a Hairdresser at the time that she made the subclass 187 visa application on 20 March 2019. In relation to whether this employment experience was at the skill level required for her occupation, the Tribunal is satisfied that it was, based on the following:

    ·the applicant’s Italian qualification as a Hairdresser, the English translation of which indicates that the applicant completed a Certificate of Competence/Vocational Training Certificate [stated to be equivalent to British N/SQV level 4 standard or a College Diploma in Italy] as a Man/Woman [Unisex] Hairdresser, between October 2000 and October 2002 at the Association for Regional Unisex Hairstylists Training, Campania, Italy; and

    ·the contents of her work reference letters from her UK and Australian employers, which indicate that the applicant was working for them as a fully qualified and experienced hairdresser.

28. The above indicates that the applicant was a fully qualified Hairdresser before she commenced her work in this field in the United Kingdom and Australia. The Tribunal further notes that prior to commencing work in the UK for the various salons listed above, the applicant stated that she worked part time and fulltime as a self-employed mobile hairdresser, indicating that she had both practical experience and her Italian qualification prior to commencing work for other employers in the United Kingdom in 2015.

29. She therefore satisfies cl.187.234(c) and thus meets cl.187.234 as a whole.

30. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the second, third and fourth named applicants applied on the basis that they were members of the family unit of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant's application on remittal to the Department for reconsideration.

    Decision

31. 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.

    Alison Mercer

    Member