Namgyal (Migration)

[2022] AATA 4698

Namgyal (Migration) [2022] AATA 4698 (12 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pema Namgyal
Ms Tshering Yangzom
Master Khenrab Wangchuk

REPRESENTATIVE:  Mr Sudhirkumar Desai (MARN: 9901822)

CASE NUMBER:  2002944

HOME AFFAIRS REFERENCE(S):          BCC2018/3166704

MEMBER:Wan Shum

DATE:12 December 2022

PLACE OF DECISION:  Sydney

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

Statement made on 12 December 2022 at 9:39am

CATCHWORDS  
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry nomination stream – Motor Mechanic – necessary skills, qualification and experience – skills assessment – necessary qualifications according to the ANZSCO – Certificate III in Light Vehicle Mechanical Technology – Recognition of Prior Learning (RPL) assessment – Bachelor of Business – two years on-the-job training – three years relevant experience – ‘at the level of skill required’ – date of formal qualification attained – decision under review affirmed

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 22 August 2018. At the time of application, Class RN contained 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 nomination stream, or the Direct Entry nomination stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry nomination stream, to work in the nominated position of Motor Mechanic.

5. The delegate refused to grant the visa finding that the skill requirements for the Direct Entry nomination stream were not met and cl 187.234 of Schedule 2 to the Regulations was not satisfied.

6. The applicants sought review and were represented by the above-named representative.

7. The applicants appeared before the Tribunal by videoconference using Microsoft Teams on 2 November 2022 to give evidence and present arguments.

8. Following the hearing, the Tribunal received from the Department a copy of the outcome of a referral check undertaken on the applicant’s overseas employment. The Tribunal was provided with a non-disclosure certificate issued by an Immigration officer pursuant to s 375A of the Act in respect of this information. The Tribunal advised of the existence of the non-disclosure certificate by email and provided a copy of the certificate to the applicants, seeking their comments on its validity. In response, the Tribunal was asked to provide details of the delegate’s capacity to make the certificate and after further correspondence, later advised that there was no objection. The certificate is electronically dated and signed and stated that the release of the documents would be contrary to the public interest because it would disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. The Tribunal considers that the reasons given for non-disclosure are specific, detailed and correctly identify the reason for non-disclosure and is therefore of the view that the certificate is valid. The information covered by the certificate is not relied upon in making this decision.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant has the skills and qualifications required. For applicants in the Direct Entry nomination stream, cl 187.234 requires that at the time of application either:

    ·     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 the Australian and New Zealand Standard Classification of Occupations (the ANZSCO) as being necessary to perform the tasks of the occupation and been employed in the occupation for at least three 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 12/096. For the skills assessment, the assessment cannot be one for a Subclass 485 (Temporary Graduate) visa.

12. In this case, the applicant did not hold a Subclass 444 visa or a Subclass 461 visa so was not in the exempt class of persons specified and cl 187.234(a) does not apply.

13. For the second alternative, the applicant’s occupation of Motor Mechanic is specified in IMMI 12/096 for the purposes of cl 187.234(b). However, the qualifications he holds are a Certificate III in Light Vehicle Mechanical Technology (the Certificate III) awarded by Intech Institute of Technology, Australia in November 2017 and a Bachelor of Business Management awarded by Bangalore University in India. Although the applicant had applied for a copy of a skills assessment from the relevant assessing authority for this occupation, Trades Recognition Australia (TRA), this was after the visa application was made and he does not meet the requirements of cl 187.234(b)(iii). Therefore, he cannot meet cl 187.234(b).

14. Given this, the applicant must, at the time of visa application, have the qualifications listed in the ANZSCO as necessary to perform the occupation of Motor Mechanic and been employed in the occupation for at least three years, on a full time basis, at the skill level required for the occupation as set out in cl 187.234(c).

15. In considering whether cl 187.234(c) is met, it is necessary to consider the occupation as described in the ANZSCO.

16. The description is extracted below:

    UNIT GROUP 3212 MOTOR MECHANICS

    MOTOR MECHANICS repair, maintain and test motor vehicle and other internal combustion engines and related mechanical components.

    Motor Vehicle Parts and Accessories Fitters are excluded from this unit group. Motor Vehicle Parts and Accessories Fitters are included in Unit Group 8994 Motor Vehicle Parts and Accessories Fitters.

    Indicative Skill Level:

    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

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

    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    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.

    Registration or licensing may be required.

17. It was submitted that the applicant has met the skill level requirement of the Certificate III and two years of work experience irrespective of the date on which he acquired a Recognition of Prior Learning (RPL) assessment in the Certificate III. It was argued following the hearing that the date on which he acquired the Certificate III through RPL is irrelevant, as the ANZSCO does not measure the skill level of an individual but rather it refers to the level of skill that is typically required to competently perform the tasks of a particular occupation. The representative referred to the explanation contained in the ANZSCO that ‘skill level is an attribute of occupations, not of individuals in the labour force or of jobs. It is irrelevant whether a particular individual working in a job in a particular occupation has a certain amount of training or a particular level of competence or not’.

18. The Tribunal has considered the argument submitted and accepts that the ANZSCO does not measure the skill level of an individual but that it refers to the level of skill that is typically required to competently perform the tasks of a particular occupation. But, regardless of the actual ability and competence of a particular individual to carry out the tasks of the occupation, the Regulations require consideration of the indicative skill level set out in the ANZSCO because the subclause requires consideration of the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. The Tribunal is of the view that cl 187.234(c)(ii) is aimed at allowing for an objective determination as to whether and when a visa applicant can be said to have the skill level typically required to competently perform the tasks. While it may be argued that there are no qualifications listed as necessary in the ANZSCO for any particular occupation, the ANZSCO does, in the Tribunal’s view, provide information as to the qualifications or experience that is typically required to competently perform the duties which can be viewed as ‘necessary to perform the tasks’. In the context of assessing what qualifications are listed in the ANZSCO as necessary to perform the tasks, it seems logical to refer to the skill level system used in the ANZSCO.

19. Given this, in the Tribunal’s view, it is necessary to consider the point in time in which the applicant obtained his formal qualification for the purposes of cl 187.234(c)(ii), as he is relying on that qualification (which is the only one he has obtained in Australia) to meet cl 187.234(c)(i). So it is that date which is relevant to consideration of when he attained the skill level required for the purposes of cl 187.234(c)(iii).

20. If the applicant relies on an Australian qualification, the correct approach in the Tribunal’s view is that the qualification must be of a kind specified in the ANZSCO for the occupation associated with the nominated position and that qualification needs to have relevance to the duties listed under the description in order for it be ‘necessary to perform the tasks of the occupation’. Taking this approach, in considering what skills are ‘necessary to perform the tasks of the occupation’, the Tribunal has referred to the information appearing under the heading ‘Indicative Skill Level’ of the Unit Group of Motor Mechanics, in particular the information contained under the subheading of: ‘In Australia’. 

21. This means that the necessary qualifications according to the ANZSCO is Australian Qualifications Framework (AQF) Certificate III including at least two years of on-the-job training or AQF Certificate IV or three years of relevant experience may substitute for those formal qualifications. The applicant has not provided evidence of having completed an AQF Certificate IV in motor mechanics or vehicular technology. Therefore, he must hold an AQF Certificate III and at least two years of on-the-job training.

22. The only qualification held by the applicant that the Tribunal considers necessary to perform the tasks of a Motor Mechanic is the Certificate III in Light Vehicle Mechanical Technology. The visa application form was completed with the start and end date of 24 November 2017 entered with an indication that it was ‘RPL assessment’. This date is the date he was awarded the Certificate III and the applicant confirmed that it was awarded based on RPL, so did not involve study at the institute. The bachelor’s degree was in the field of business and the Tribunal does not consider that business studies are necessary to perform the tasks of a ‘Motor Mechanic’ which, according to the ANZSCO, involves repairing, maintaining and testing motor vehicle and other internal combustion engines and related mechanical components. Therefore, while he does hold a higher qualification than that listed in the ANZSCO for his nominated occupation of AQF Certificate III (including at least two years of on-the-job training) or AQF Certificate IV, the Tribunal does not accept that the applicant’s Bachelor of Business is a qualification listed in the ANZSCO as necessary for the occupation of Motor Mechanic as required by cl 187.234(c)(ii). Furthermore, the bachelor’s degree was obtained overseas which means that it cannot meet cl 187.234(c)(i).

23. This means that the only formal qualification awarded to the applicant relevant to performing tasks of a Motor Mechanic was the Certificate III in Light Vehicle Mechanical Technology, and the ANZSCO indicates that at least two years of on-the-job training is also necessary for the occupation.

24. The applicant claims that he did have over two years of on-the-job training as he worked as a Motor Mechanic in Bhutan. The visa application form was completed with the dates of employment from 1 December 2012 to 31 March 2017, which are the dates set out in the reference letter of 1 April 2017 that was submitted to the Department. The reference letter relevantly states that he had worked as a full-time Motor Mechanic during that period. The applicant later claimed that his employment dates were incorrect and it should have been 1 March 2012 to 31 March 2017, which were the dates he provided to TRA for his skills assessment application made on 23 September 2019. The Tribunal had some concerns about the change in dates, noting that the TRA assessment application was lodged over a year after the visa application was made, and raised doubts about the claimed dates to the applicant at the hearing but is prepared to accept that he was employed from 1 March 2012 to 31 March 2017 for the purposes of the review, noting that the outcome of the verification check which was received after the hearing was that the dates of employment were 1 March 2012 to 31 March 2017 instead of 1 December 2012 to 31 March 2017.

25. The applicant also claims that he had been working as a Motor Mechanic in Australia on a part-time basis shortly after his arrival.

26. As he is claiming to have had relevant experience prior to obtaining the formal qualification, it is relevant to consider whether he obtained the level of skill necessary on award of the Certificate III qualification or at a different point in time. Having given further consideration to the concept of skill level set out in the ANZSCO and Skill Level 3 for the occupation and Unit Group of Motor Mechanic,[1] it appears in the Tribunal’s view this means that if the earliest date from when on-the-job training could be said to begin is from the date of the formal qualification, then the applicant was deemed to have had the skills necessary to perform the occupation of Motor Mechanic on 24 November 2019 which is after the visa application was made on 22 August 2018. If the relevant point in time as to when he had the skills necessary was upon award of the Certificate III, i.e. 24 November 2017, and that he had two years of on-the-job training prior to this date, it appears to the Tribunal that the applicant has not provided evidence that he had at least three years of employment after the formal qualification was issued on a full-time basis by 22 August 2018, being the time of application.

    [1] In the Conceptual Basis section of the ANZSCO, 2013 publication Version 1.3 released 5 November 2019, under the subheading of ‘The concept of skill level… [f]ormal education and training refers to the level and amount of education and training required for competent performance of the tasks required in an occupation… [o]n-the-job training refers to the amount of training required after commencing work in an occupation for competent performance of the tasks in that occupation. It is measured in months or years, and may be undertaken at the same time as formal training’. The same information appears in the archived publication Version 1.2 released 26 June 2013.

27. On the evidence presented, the earliest date the applicant could be taken to have attained the skill level required based on formal qualifications is on 24 November 2017. If he is not seeking to rely on the formal qualifications, based on the argument that he had the necessary skills prior to the formal qualification based on his work experience, in the Tribunal’s view the number of years that could substitute for the formal qualification also has to be determined by reference to the skill level set out in the ANZSCO. For Skill Level 3, this is at least three years of relevant experience.

28. The requirement for the Subclass 187 visa in the Direct Entry nomination stream is to be assessed at the time of application and only employment and experience prior to the visa application at the skill level (whether that is determined based on formal qualifications or substituting the three years of relevant experience) can be counted towards the three years of full-time employment for cl 187.234(c)(iii).

29. The Tribunal will now consider whether the applicant had at least three years of relevant experience as a Motor Mechanic which could substitute for the formal qualification at an earlier point in time.

30. For the purposes of determining the earliest point in time on the evidence presented, the Tribunal has proceeded on the basis that the applicant was employed with Leksel Automobiles from 1 March 2012 as a Motor Mechanic rather than 1 December 2012 as initially claimed. The Tribunal finds that the earliest point in time the applicant had achieved three years of relevant experience which would substitute for the formal qualification is by 1 March 2015. The applicant needs to have at least three years employment on a full-time basis after this date for cl 187.234(c)(iii), as this is the level of skill required for the occupation according to the ANZSCO.

31. It is claimed that at the time of application, the applicant has been employed in the occupation for at least three years on a full-time basis and at the level of skill required for the occupation. In the submissions, the applicant’s work experience at the time of application was said to equate to five years, seven months and two weeks based on five years and one month as a full time Motor Mechanic at Leksel Automobiles plus approximately six months and two weeks work experience. This was based on one year at Amerr Ply Ltd from 1 August 2017 to 20 August 2018 on a part-time capacity at 20 hours per week. The submissions refer to a deduction of two years from the total ‘due to cl 187.234(c)(ii)’, such that the balance of experience was said to be three years, seven months and two weeks. The representative argued that two years of work experience should not be deducted from the applicant’s total work experience in calculating the three-year requirement because the PAM3 guidelines allow for the work experience requirement to be ‘served concurrently when work experience substitutes for the formal qualifications as per ANZSCO’.

32. The submissions then refer to PAM 3 guidelines issued in respect of cl 186.234(2)(b), stating that clauses 187.234(c)(iii) and 186.234(2)(b) do not refer to a continuous employment for at least three years on a full-time basis and nor does it refer to the three years of work experience immediately prior to lodgement of the visa application. However, the Tribunal notes that the PAM3 guidelines clearly state under ‘9.12.1 Requirements’ the following: ‘The applicant must have worked full-time for at least 3 years before the date of application’.  In any case, the PAM 3 guidelines do not in the Tribunal’s view support the representative’s contention that the date on which the applicant acquired the Certificate III through RPL is irrelevant. Under ‘9.12.3 Employment at the Relevant Skill Level’, it states:

    Applicants need to demonstrate that they have been employed at the level of skill required for the occupation. That is, the applicant must have been employed and actively performing the duties of the nominated occupation for a period of at least 3 years after obtaining any qualifications that would allow them to work without restriction in the occupation. They must have been fully skilled to perform the duties specified for the occupation. Any periods of work performed in any occupational training capacity (for example, an apprentice, trainee or assistant) do not count towards the 3 year full-time work experience.

1. The submissions also refer to PAM 3 guidelines for a Subclass 482 visa, and that under cls 482.221 and 482.231, visa applicants are required to have worked in the nominated occupation, or a related field, for at least two years. The Tribunal has had regard to the guidelines referred to but notes that, other than stating that the employment does not need to be continuous, and the number of hours full-time and part-time equivalent work should be, is of little assistance in the circumstances of this case as cl 187.234(c)(iii) is worded differently and requires that the applicant had the qualifications listed in the ANZSCO as being necessary to perform the tasks of the occupation; and that the employment needs to be at the level of skill required for the occupation.

2. The Tribunal has considered the submissions made, but considers that it fails to properly address one aspect of cl 187.234(c)(iii) that the employment needs to have been at the level of skill required. As indicated above, in the Tribunal’s view this is determined by reference to the qualifications listed in the ANZSCO having regard to cl 187.234(c) as a whole. The express reference to the ANZSCO appears directly relevant to determining whether a visa applicant has the necessary level of skill for an occupation. The Tribunal therefore does not accept that all of the applicant’s claimed employment was at the level of skill required, given that he did not hold any relevant formal qualifications for the occupation until 24 November 2017.

3. Having considered the submissions and evidence before it, the Tribunal finds that the applicant has not demonstrated that at the time of application, he was employed in the occupation at the level of skill required for more than three years on a full-time basis on the evidence presented. This is because, the earliest point in time the applicant had attained the skill level required was 1 March 2015 (having at that point three years of relevant experience as a Motor Mechanic). From 1 March 2015 to 31 March 2017, the applicant had two years and one month of full-time employment in Bhutan at the relevant skill level. He was then employed as a Motor Mechanic in Australia for one year and three weeks prior to the visa application, i.e. from 1 August 2017 to 22 August 2018, but only on a part-time basis. So regardless of whether the requirement in cl 187.234(c)(iii) is for three years of full-time employment or allows for the equivalent, it cannot be said that the applicant had at least three years of full-time employment at the relevant level of skill by 22 August 2018.

4. As he did not have at least three years of employment on a full-time basis at the level of skill required at the time of application, he does not meet the requirements of cl 187.234(c)(iii). This means that he does not satisfy cl 187.234(c) and, given the above findings, cl 187.234 is not met.

5. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry nomination 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 nomination stream have not been met, the decision under review must be affirmed.

   decision

6. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

   Wan Shum
   Member