NT Christian Schools (Migration)

[2023] AATA 4428

NT Christian Schools (Migration) [2023] AATA 4428 (17 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  NT Christian Schools

VISA APPLICANTS:  Mrs Anmari

Bassett

Mr Jeremy

Donovan Bassett

CASE NUMBER:  2107738

HOME AFFAIRS REFERENCE(S):          BCC2021/1110241

MEMBER:Namoi Dougall

DATE:17 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 482 visa:

·cl 482.212(3) of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in relation to the second named applicant.

Statement made on 17 November 2023 at 4:46pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – failure to attend scheduled hearing – application dismissed – reinstatement sought – Short-term stream – Residential Care Officer – skills, qualifications and employment background – relevant experience to substitute for formal qualifications – ‘house parent’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 360, 362B
Migration Regulations 1994 (Cth), rr 4.02, 4.12; Schedule 2, cl 482.212

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 on 26 May 2021 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 20 May 2021. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the Short-term to work in the nominated occupation of Residential Care Officer.

3. The delegate in this case refused to grant the visa on the basis that the primary visa applicant, Mrs Anmari Bassett (the visa applicant) did not satisfy the requirements of cl 482.212(3) of Schedule 2 to the Regulations because the delegate was not satisfied that applicant had the skills, qualifications and employment background to necessary to perform the tasks of the nominated occupation.

4. On 3 August 2023, the Tribunal wrote to the review applicant and advised that Departmental records indicate that both visa applicants were offshore at the time of the visa application. The Tribunal’ letter also advised that an application for review lodged by a sponsor to the Tribunal by the sponsor cannot be a combined application. Therefore, as the applicant’s application for review included both visa applicants, the second name applicant, Mr Jeremy Donovan Bassett does not have standing for review.

5. The Departmental records indicate that both applicants were offshore at the time of the visa application. Even though both decisions are reviewable decision under the s 338(9) and reg.4.02(4)(l), only one combined application review was lodged on 15 June 2021 with one fee and pursuant to r.4.12, the decisions cannot be combined into one application for review. Therefore, the application for review of the decision to refuse the second named visa applicant a Subclass 482 visa, is not an application properly made and it follows that the Tribunal does not have jurisdiction in this matter.

6. On 5 September 2023, the review applicant was invited under s 360 of the Act 1958 to appear before the Tribunal on 26 September 2023 at 11:00am, but did not do so. The Tribunal dismissed the application under s 362B(1A)(b) of the Act and the review applicant applied for reinstatement of the application within the prescribed period in a letter discussed below.

7. On 11 October 2023, the review applicant advised in writing that the applicant’s HR & Payroll Manager, Ms Glynnis Few had been contacted by phone by a Tribunal officer and she had informed that officer that she was not available on the date of the hearing. Although there is no record of this conversation the Tribunal decided to accept the review applicant’s statement as to Ms Few’s conversation with a Tribunal officer and the review was reinstated.

8. Ms Glynnis Few, the Human Resources & Payroll Manager of the review applicant appeared on behalf of the review applicant before the Tribunal on 2 November 2023 to give evidence and present arguments.

9. For the following reasons, the Tribunal has decided that the decision should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

Applicant’s skills, qualifications and employment background

1. Clause 482.212(3) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl 482.212(4), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.

2. The nominated occupation is Residential Care Officer (ANZSCO 411715).

3. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) specifies that the indicative skill level of a Residential Care Officer is commensurate with an AQF Associated Degree, Advanced Diploma or Diploma (ANZSCO Skill Leve 2). At least three years of relevant experience may substitute for a formal qualification.

4. The visa applicant in the visa application indicated that her highest qualification was a senior secondary school certificate from Greenside High School, South Africa. Therefore, the Tribunal is not satisfied that the applicant has a relevant qualification which is an AQF Associated Degree, Advanced Diploma or Diploma and will consider if the applicant has three years of relevant experience.

5. The Tribunal has had regard to tasks listed for the unit group Welfare Support officers (4117) in the ANZSCO which includes the specialisation Residential Care Officer when considering if the applicant has the relevant experience to substitute for formal qualifications.  Those tasks are as follows:

   ·assessing clients' needs and planning, developing and implementing educational, training and support programs

   ·interviewing clients and assessing the nature and extent of difficulties

   ·monitoring and reporting on the progress of clients

   ·referring clients to agencies that can provide additional help

   ·assessing community need and resources for health, welfare, housing, employment, training and other facilities and services

   ·liaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services

   ·supporting families and providing education and care for children and disabled persons in adult service units, group housing and government institutions

   ·supervising offenders on probation and parole

   ·assisting young people to solve social, emotional and financial problems

   ·preparing submissions for funding and resources, and reports to government bodies and other agencies

6. ANZSCO also states, in relation to the position of Residential Care Officer that the person in the position: “provides care and supervision for children or disabled persons in group housing or institutional care”.

7. The review applicant provided an undated letter of support which stated that the nature of the position which is one offered to a couple working as mum and dad and living together in a family group home with indigenous children in their care. The review applicant also stated that it had undertaken an interview with the visa applicants and is satisfied that they are qualified through their different professional capacities and through supporting and raising two children.

8. The visa applicant in the visa application indicated that her current employment from 1 November 2013 was as a Branch Manager at Colmart Clothing, South Africa.

9. Provided with the visa application were the following documents:

   ·     a letter from the Managing Director of Eldon Stationery Co Pty Ltd dated 16 February 1998 confirming her employment in the procurement section of the business from May 1994 to February 1998

   ·     A letter of appointment signed by Mr Sean Amron-Coetzee of Grapha Pty Ltd dated 28 February 1998 confirming the applicant’s appointment to assist the sales team.

   ·     A letter of appointment signed by T Groom, Operation Manager at Colbar Clothing dated 18 November 2013 appointing the applicant as Branch Manager of the Cape Town Branch.

10. Also provided with the visa application was a motivation letter dated 20 March 2021 from the visa applicant’s sister who resides in the Northern Territory.

11. The Tribunal was provided with a detailed submission from the review applicant on 15 June 2021. It was submitted that the review applicant started operating in 1978 and runs family group homes for indigenous students from remote locations in the Northern Territory. The students are cared for within large family homes with a Christian Mum and Dad. The students learn to shop cook, care for their health, be good neighbours and care for their home as they work with their house parents. House parents support the students to develop broader life skills and: do school runs, make lunches, do clinic visits; and other ’Mum and Dad’ tasks.

12. The submission also set out the duties of a house parent and how the visa applicant met those requirements as follows:

    ·     Management and coordination. The visa applicant previous experience as a manager met this requirement. Further it was submitted that outside of paid employment the applicant was a chaperone and coordinator for the Rugby union & Bodybuilding (Western Province Bodyboarding Association). Her duties in this role included ensuring the team were picked up and dropped off for competition and had clean sports kit, food and snacks. When on tour the visa applicant had to coordinate major and minor functions for accommodation, food and transport.

    ·     Liaison and cooperation. This includes liaising within the organisational as well as with families and schools. The visa applicant met this requirement through her work experience, raising her own children.

    ·     Supervision and support. The visa applicant met this requirement through her supervision support of teams in her paid work. Further, she and her son ran the Bodyboarding clinic for underprivileged children in their local community for 2 years in the summer season. The visa applicant has also taken care of a number of young people and adults in her home, some for extended periods of time, from 1992 to 2015, and has provided counselling and empowerment to women who have subject to abuse and headed and supported a community feeding program within an underprivileged community, showing her ability to assess the needs within her community and deal with different levels of trauma.

    ·     Record keeping and reporting. The visa applicant has met this requirement in her personal and professional life.

13. The submission stated in relation to the young people and adults the applicant and her spouse looked after in their home as follows:

    1992 – Took in and cared for two boys

    Anmari and her husband Jeremy took in two young Tswana boys (Mimi 5 and Joseph 8) in 1992 whose family had been living on their farm. The boys’ mother was killed and their father sent to jail leaving the boys with nowhere to go. The couple took in and raised them together with her own children, Eloise and Donovan. Anmari and Jeremy committed to parenting these boys like they were their own. They received no financial assistance but instead selflessly cared for these two boys, ensuring they attended school, paying for doctor’s appointments, providing food, clothes, school stationery, uniform and helping the boys to grow into young men with purpose and options in life. Joseph stayed with the couple for 15 years and then got married. Mimi stayed for 20 years and Anmari helped him to find a job with the company she worked for. Both boys are now men who support and care for their own families.

    2002 - Assisted and supported a teenage boy by providing accommodation and a nurturing environment.

    Dino Cicatello will attest to Anmari’s Christian values, as he at 15 years old came home with Anmari’s son Donovan because he had a falling out as a result of his mothers partner. Anmari took Dino into their home, clothed and fed him, they helped him to stay on track academically and encouraged him to come to come to church and join the youth group they ran there. Anmari encouraged Dino to forgive his mother and was instrumental in helping Dino and his mother reconcile and reunite over the following year. Today Dino has his own little family and is the Pastor at the Life giving church that Anmari and Jeremy serve in. This is evidence of how God works through the lives of committed Christians, who want to just serve others.

    2004 – Supported a young girl by providing her with accommodation and helping her to repair her family relations.

    2006 - Assisted a young homeless person by providing him with accommodation and later supporting him to find a rehabilitation centre to support him through a drug problem.

    2015 – Supported a man and his two teenage children by providing them with accommodation which in turn provided a stable environment for one of the daughters to finalise her school exams.

    This was a particularly difficult time in South Africa for the homeless, Anmari and Jeremy opened their small home to a man, Peter, whose wife left him with two young children because he had lost his job and his home, he had nowhere to go. He stayed with Anmari and Jeremy for about 4 months until he was able to find a job and house. This man now helps run a large NGO helping the street people in the centre of Cape Town.

14. The Tribunal was provided with an email dated 28 May 2021 from Mr Steven Florisson, CEO, Boarding Training Australia confirming that the applicants had enrolled in a Certificate IV in Community Services. The email also stated that the Certificate IV contributes 13 Units towards the Diploma of Youth Work.

15. At the hearing the Tribunal explained the requirements of cl.482.212(3) and Ms Few stated she understood the requirements. The Tribunal discussed position and its requirements. Ms Few stated that the role is different because the position would be dealing with traumatised and dysfunctional children and communities. Dealing with alcohol and drug abuse and have to be in communication regularly with parents and guardians who are also traumatised and dysfunctional. Family members are often in hospital and their children go with the houseparents to spend time with their parents or guardians. The houseparents also bring the family back to their home to spend time with the children. This is to integrate the family and the children. Need someone who can deal with the different cultural experiences and trauma related experiences. Extremely hard position to fill.

16. Ms Few also stated that the applicants cannot complete without practical placements which requires them to be observed. The practical placement would have to be done in Australia. The Tribunal explained that on this evidence the applicant does not meet the requirements of cl.482.212. Ms Few stated that the skills required to be a house parent is different from a Residential Care Officer because the role is as a houseparent to 10 children that is you become their mother and father. It is not a roster on and roster off role.

17. The Tribunal is satisfied that the position of house parent is more than the nominated occupation of Residential Care Officer especially as the young people in their care are indigenous and some of whom traumatised and dysfunctional. The role as stated in the submission: ‘extends well beyond any boarding supervision services role description’. The applicant through her volunteer work and particularly through takin in an caring for many young people has developed skills which are equivalent to a number of the task of a Residential Care Officer such as: assessing needs and planning and developing support programs; speaking with young people and assessing the nature and extent of their difficulties; referring them to educational, medical and welfare organisations and liaising to those agencies; supervising; and helping those young people solve their social, emotional and financial problems. Further the applicant has acquired those skills over a period of more than 20 years. Her work experience provides the administrative skills that are required for the nominated occupation. In particular the skills the applicant has acquired are even more relevant to the context and nature of the position.

18. Therefore, on the above, the Tribunal is satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

19. For these reasons the applicant meets the requirements of cl 482.212(3).

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

DECISION

1. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 482 visa:

   · cl 482.212(3) of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in relation to the second named applicant.

Namoi Dougall
Member