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 granted the request for a hearing postponement and rescheduled the hearing for 7 February 2017.
The applicant appeared before the Tribunal on 7 February 2017 via telephone from Ireland to give evidence and present arguments. The Tribunal also received oral evidence from Louise Sullivan by telephone from Tasmania.
The applicant was represented in relation to the review by her registered migration agent. He attended the hearing via telephone from Tasmania.
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).
As the applicant does not meet the requirements of either cl.186.234(a) or (b) the Tribunal has considered if the applicant meets cl.187.234(c). This requires that the applicant has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation of “Residential Care Officer’.
This particular occupation is specified in the ANZSCO dictionary as part of ‘Welfare Support Workers’ occupational group (4117) which specifies an AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2) or “at least three years of relevant experience may substitute for this formal qualification”.
ANZSCO states that Welfare Support Workers “provide support, information and advice to clients on emotional, financial, recreational, health, housing and other social welfare matters, and evaluate and coordinate the services of welfare and community service agencies”. In relation to the Australian indicative skill level it states “Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
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
The tasks of occupations within the Welfare Support Workers unit are listed as including
oassessing clients' needs and planning, developing and implementing educational, training and support programs
ointerviewing clients and assessing the nature and extent of difficulties
omonitoring and reporting on the progress of clients
oreferring clients to agencies that can provide additional help
oassessing community need and resources for health, welfare, housing, employment, training and other facilities and services
oliaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services
osupporting families and providing education and care for children and disabled persons in adult service units, group housing and government institutions
osupervising offenders on probation and parole
oassisting young people to solve social, emotional and financial problems
opreparing submissions for funding and resources, and reports to government bodies and other agencies
In particular a Residential Care Officer is specified as a Skill level 2 occupation with its primary task to “provide care and supervision for children or disabled persons in group housing or institutional care”.
The applicant recorded her qualifications in her visa application as a Bachelor of Arts from Heriot-Watt University Edinburgh College of Arts and a Graduate Diploma in Business in Cultural Management from the Dun Laoghaire Institute of Art, Design and Technology. Neither of these qualifications are relevant to the nominated occupation.
The applicant gave evidence at the hearing that she had recently completed an online Level 5 in Intellectual Disability Studies and achieved a distinction. This amounted to a 2-3 month full time course and she believes it is equivalent to a Certificate III or Certificate IV. Following the hearing the applicant provided a copy of an Irish “QQI Award” awarded on 14 October 2016. It is described as “Level 5 – Intellectual Disability Studies”. The Tribunal has consulted the Australian Government’s International Education Online database[1] to determine that an Irish Level 5 Certificate is equivalent to an Australian Qualifications Framework (AQF) Certificate IV. Therefore this educational qualification is not of the educational level specified in the ANZSCO dictionary of an AQF Associate Degree, Advanced Diploma or Diploma (skill level 2). It was, in any case, completed after the time of application.
[1] < accessed 22 February 2017.
The applicant agreed at the hearing that she was seeking to rely on her relevant employment experience although she said her Bachelor of Arts informed her art therapy work. She recorded her relevant employment history in her visa application as ‘Disability Support Worker’ for Able Australia from 1 May 2014 to 25 February 2015 and a Disability and Mental Health Community Arts Facilitator for Finglas Art Squad from 1 January 2012 to 30 September 2012. She listed various other employment experiences from October 2007 to July 2014 but indicated in relation to each of these that they were not relevant to the nominated position.
Based on the applicant’s visa application she has identified a total of 19 months (10 months at Able Australia and 9 months at Art Squad) of employment experience relevant to the occupation of the ‘Residential Care Officer’ at the time of her visa application.
At the hearing she gave evidence that she continued to work at Able Australia in the position of Residential Care Worker until 14 March 2016 when she departed for Ireland.
If the Tribunal were to include this additional relevant employment experience the applicant’s relevant employment experience amounts to a total of 31½ months at the time of decision (and 19 months at the time of application). However as ANZSCO specifies “at least 3 years of relevant experience” at the hearing the Tribunal invited the applicant to comment on this and provide evidence of any additional relevant experience.
The applicant submitted that her management qualifications helped her when she acted in management and administrative positions. The applicant explained that she has a brother with a disability who she has lived with and supported throughout her life and she volunteered with the Arch Club based on Lexlip, Ireland. This experience, gained about 14 years ago, involved assisting in administration, manning dance events and managing clients who were people with disabilities. The applicant did this volunteer experience for 2 years working about 3 hours each month. She also uses her Art degree to inform her work in Art Therapy and she brings this into the position to carry out artistic projects. She has been involved in arts and music in the community and this involved her personal skills set. When working she cares for 2, 3 or 4 people in a home. She believes her life experience of living with her brother who has a disability to be relevant.
The applicant’s former and proposed employer, Louise Sullivan gave evidence that since the applicant had to return to Ireland it has left a huge hole in what care they can provide to people especially those who have experienced trauma. The organisation offers arts therapy in Victoria but not in Tasmania because it cannot recruit people with these skills however an art program is a component of its day care program. Ms Sullivan emphasised that the applicant’s art experience had been of great benefit to their clients especially those who have been highly traumatised and also often highly anxious. She believes that the applicant has a great gift and has “got it” in working with people with disabilities. The fact that she has kept the position open for her for so long is a testament to this. A very important reason why she was employed was because she lived with her brother who has a disability and the fact that she has lived in this household does, in Ms Sullivan’s experience, amount to many years of experience (in the sector).
While the applicant’s relevant employment experience amounts to only 19 months at the time of application (and 31½ months at the time of decision) the Tribunal has considered if her voluntary work in disability and/or her personal experience of living with a brother who has a disability can be viewed as comprising an element or elements of the “at least 3 years of relevant experience’ specified in the ANZSCO dictionary.
In doing so the Tribunal has considered the ANZSCO Scope of the Classification[2] and in particular the ‘the concept of skill level’ which records:
The scope of ANZSCO is all occupations and jobs in the Australian and New Zealand labour markets undertaken for pay or profit, including jobs occupied by people working for themselves.
ANZSCO is not designed to cover work not undertaken for pay or profit, for example voluntary work. However, this does not preclude ANZSCO from describing such activities.
In ANZSCO, skill level is defined as a function of the range and complexity of the set of tasks performed in a particular occupation. The greater the range and complexity of the set of tasks, the greater the skill level of an occupation…
ANZSCO does not measure the skill level of an individual, rather it refers to the level of skill that is typically required to competently perform the tasks of a particular occupation. Skill level is an attribute of occupations, not of individuals in the labour force or of particular 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.
For example, a person who spreads mortar and lays bricks for a living has the occupation Bricklayer, regardless of whether he or she is an exceptionally competent bricklayer with many years of experience and post-trade qualifications, or an inexperienced bricklayer with no formal qualifications and a low level of competence. The skill level of the occupation Bricklayer is determined on the basis of that typically required for competent performance.
[2]< accessed 22 February 2017.
ANZSCO assigns occupations to one of five skill levels. In determining the skill level of each occupation in ANZSCO, advice was sought from employers, industry training bodies, professional organisations and others to ensure that the information is as accurate and meaningful as possible. The determination of boundaries between skill levels is based on the following definitions.
The Tribunal considers that this confirms that only the applicant’s paid work experience can inform its consideration of whether she has “at least three years of relevant experience” to substitute for a formal relevant qualification and consequently it cannot include the applicant’s voluntary work and/or life experience.
This view is supported by the recent judicial authority of Dhimal v MIBP [2016] FCCA 1094 in which Lucev J considered the correct approach to ANZSCO and, after examining the Scope of the (ANZSCO) Classification, its Underlying Concepts and Definitions, found:
…ANZSCO does not contemplate unpaid work counting towards relevant work experience…[c]onsistent with the PAM3 guidance referred to by the Tribunal...the first applicant’s voluntary post-qualification work experience could not have satisfied the relevant requirements of ANZSCO for the purposes of cl.187.234(c) of Schedule 2 to the Migration Regulations…
Applying the same reasoning the Tribunal is not able to consider the applicant’s lifelong experience of living with a brother with a disability as constituting any component of the aggregate of “at least three years of relevant experience”.
Therefore, at the time of application the applicant’s relevant employment experience amounted to 19 months which is short of the required “at least 3 years”. In making this decision the Tribunal acknowledges, based on the evidence before it, that the applicant is a highly valued, committed and skilled Residential Care Worker; one that her proposed employer Able Australia was most sincerely hoping to continue employing.
As the applicant does not satisfy cl.187.234(a), (b) or (c), cl.187.234 is not met.
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 Synon
Member