Oman (Migration) - [2017] AATA 345

Oman (Migration) [2017] AATA 345 (22 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sinead Brid Oman
CASE NUMBER:  1510973
DIBP REFERENCE(S):  BCC2015/627862
MEMBER:Karen Synon
DATE:22 February 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 22 February 2017 at 8:59am
CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Residential Care Worker –No relevant qualifications – 3 years employment experience not met
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.234, cl 187.243, IMMI 12/060, IMMI 12/096
CASES
Dhimal v MIBP [2016] FCCA 1094
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied to the Department of Immigration for the visa on 26 February 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Residential Care Worker’. 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.
The delegate refused to grant the visa because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations because he/she found she did not have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.
The applicant applied for review of the primary decision on 12 August 2015 and provided a copy of the department’s decision.
The hearing was scheduled for 11 January 2017 and an invitation sent to the applicant via her authorised representative. On 25 December 2016 a request was received to postpone the hearing on the basis that the applicant had returned to Ireland in mid-March 2016 because her father was seriously ill and was on a bridging visa C which meant she could not return to Australia.
On 3 January 2017 the Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 345
Decision Date: 22 February 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a Residential Care Worker. The applicant sought to have a decision not to grant the visa reviewed.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.234 of the Migration Regulations 1994 concerning skills and qualifications for the Direct Entry stream. This clause outlines three alternative pathways for applicants: being an exempt person, having their occupation specified by the Minister and obtaining a suitable skills assessment, or possessing the qualifications listed in ANZSCO as necessary for the occupation.

The Tribunal found that the applicant did not qualify as an exempt person under the specified classes (Class 1, 2, or 3) as defined by IMMI 12/060. Furthermore, the applicant's occupation, 'Residential Care Officer', was not specified in the relevant instrument (IMMI 12/096) for the purpose of meeting the criteria under clause 187.234(b). As the applicant had not met the requirements for any of the alternative pathways within the Direct Entry stream, the Tribunal concluded that the applicant had failed to satisfy the necessary criteria for the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 187 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is 187.243.Skills and qualifications 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 – 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. 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. 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. The applicant confirmed at the hearing that, at the time of visa application, she was not a person who was to be employed as a:· Minister of Religion (ANZSCO Code 272211);· Researcher, scientist and technical specialist at ANZSCO skills levels 1 or 2; or· An Academic as a University Tutor (ANZSCO Code 242112), a University Lecturer (ANZSCO Code 242111), or Faculty Head (ANZSCO Code 134411). The applicant is therefore not an exempt person under Class 1. The applicant further confirmed that her annual salary is below $180,001. Accordingly, the Tribunal finds that the applicant was not nominated for a visa for a position where her nominated earnings would be at least equivalent to the current Australian Tax Office top individual income tax rate, that is $180,001 or more per annum, and therefore does not fall within Class 2. Departmental records show and the applicant confirmed at hearing that, at the time of application, she did not hold a subclass 444 or 461 visa. She is therefore not an exempt under Class 3. On this basis the Tribunal finds that the applicant was not in a class of exempt persons specified by the Minister. She therefore does not meet the requirements of cl.187.234(a) at the time of application. The Tribunal has considered if the applicant meets the alternative criteria set out in cl.187.234(b). This requires that the applicant satisfies 6 cumulative elements one of which is that her occupation is specified by the Minister in an instrument in writing for this paragraph. The relevant instrument is IMMI 12/096. The applicant’s occupation of ‘Residential Care Officer’ is not specified in IMMI 12/096. Therefore the applicant does not satisfy cl.186.234(b).

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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