Milocani (Migration)

[2022] AATA 3666

Milocani (Migration) [2022] AATA 3666 (14 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Francesco Milocani

CASE NUMBER:  1913341

HOME AFFAIRS REFERENCE(S):          BCC2018/4672691

MEMBER:George Hallwood

DATE:14 September 2022

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 14 September 2022 at 9:44am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Dance Teacher – three years of full-time work experience meets the requirements of cl 187.234 – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 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 Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Dance Teacher.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.234 of Schedule 2 to the Regulations because the applicant did not have the required skills and qualifications.

6. The applicant appeared before the Tribunal on 13 September 2022 to give evidence and present arguments.

7. The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the skills and qualifications requirements for the Direct Entry Stream as set out in cl 187.234.

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, 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 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.

13.Having read the documentation provided, the Tribunal is satisfied as a matter of fact that the applicant was not specified in the exempt class of person contained in the instrument IMMI 18/045. In brief this includes persons who are currently in Australia as the holder of a subclass 444 or 461 visa and have been working with their nominating employer in their nominated occupation for at least two years (excluding any periods of unpaid leave) in the last three years immediately before making their visa application. The applicant does not meet the requirements of cl 187.234(a).

14.In the applicant’s application he indicated that he had not had a skills assessment, the applicant having obtained their skills overseas. For this reason, the applicant does not meet the requirements set out in cl 187.234(b).

15.As neither of the two criteria above apply, the question is whether the applicant meets the requirements of cl 187.234(c). The occupation described in ANZSCO most relevant to the position of Dance Teacher is Dance Teacher (private tuition) ANZSCO Code 249212.

16.ANZSCO provides a description of the occupation Dance Teacher (private tuition) – ANZSCO Code 249212 and sets out the skill level as Skill Level 1 stating that most occupations in this unit group have a level of skill commensurate with a bachelor’s degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances, relevant experience and / or on-the-job training may be required in addition to the formal qualification.

17.The applicant submitted that he worked as a part-time dance teacher from 17 September 2012 until 20 November 2017 in Italy. He has also worked as a dance teacher in Australia from August 2018 until now although, as the requirement is at the time of application, the Australian experience is not relevant in this matter.

18.The applicant had five years and two months of relevant experience at the time of application. The applicant described to the Tribunal the dance teaching he performed while in Italy and provided a summary of the hours he worked. In this case the applicant averaged between 25 and 36 hours a week over this period of employment with an average of at least 35 hours a week since 2014. At the hearing the applicant also told the Tribunal that he had been involved in dance teaching related activities outside his normal and recorded employment hours since 2012.

19.When questioned about the qualifications of other Dance Teachers where he currently works, the applicant was unsure but indicated that he believed few of the seven teachers at his studio were qualified but were teachers due to their experience.

20.The Tribunal is satisfied that the applicant’s more than five years of experience had, at the time of application, provided him with a level of skill that would substitute for the formal qualification for the purposes of this application.

21.The additional requirement for applications made on or after 18 March 2018 is that, at the time of the visa application, the applicant must 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. Full time employment is usually work of an average of 38 hours a week in Australia, although this can vary between employers and industries. The Australian Bureau of Statistics treats people who usually work 35 or more hours a week (in all jobs) as employed full-time.

22.The nature of the role of Dance Teacher is such that classes often fit the availability of students outside normal work hours. The applicant told the Tribunal that his working hours often finished at 10pm and included weekends. His workplace’s current Enterprise Agreement from 2019 contains a definition of “Full-time employee” [at 2.9]: “means, an employee guaranteed a minimum of 35 hours or 35 classes a week averaged over a year or are paid a minimum as for 35 hours or 35 classes”.

23.While the applicant’s experience was gained in Italy and not in his current employment in Australia, the Tribunal is satisfied that in this matter an average of 35 hours a week can be considered as full-time employment. 

24.The applicant provided evidence from his previous employer in Italy that he had averaged 35 hours a week as a Dance Teacher between mid-2014 and late November 2017. For this reason, the Tribunal is satisfied that the applicant had been employed in the occupation on a full-time basis for at least 3 years, and that this was within a reasonable time of applying for the visa.

25.The question also arises whether the applicant’s 3 years full-time employment was at the level of skill required for the occupation. Does the applicant need to have 5 years’ experience to meet the ANZSCO Skill Level 1 requirement prior to the 3 years full-time employment criterion, or can they both occur concurrently? The Department’s policy provides guidance in relation to this question: “… the experience requirement under 187.234(c)(iii) can be served concurrently when work experience substitutes for the formal qualifications as per ANZSCO under 187.234(c)(ii)…”. The Tribunal has no reason to stray from the Department’s policy position in this matter and is satisfied that the three years of full-time work experience meets the requirements of cl 187.234(c)(iii).

26.For these reasons the Tribunal is satisfied that the skills and qualifications requirements are met.

27.Therefore, cl 187.234 is met.

CONCLUDING PARAGRAPH

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

decision

29.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.

George Hallwood

Member