Parry Bulman (Migration)

[2020] AATA 4009

Parry Bulman (Migration) [2020] AATA 4009 (6 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Toni-Ann Parry Bulman
Mr Christopher Thomas

CASE NUMBER:  1832561

HOME AFFAIRS REFERENCE(S):          BCC2018/720804

MEMBER:Stavros Georgiadis

DATE:6 September 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration in respect of all applicants, with the direction that the first named 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 6 September 2020 at 2:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – qualifications, skills, experience – has least three years of relevant experience to substitute for formal qualifications – decision under review remitted

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 (the Act).

2. The applicants applied for the visas on 12 February 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 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Travel Agency Manager (ANZSCO 142116).

5. The delegate refused to grant the visas because the delegate considered that the applicant did not meet cl.187.234 of Schedule 2 to the Regulations as the applicant did not hold a formal qualification listed in ANZSCO 142116 as being necessary to perform the tasks of the nominated occupation: cl.187.234(c).

6. The applicants appeared before the Tribunal on 6 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Keith Roberts, the applicant’s current employer. The Tribunal received written submissions and further written submissions within the additional time allowed of 14 days following the hearing and has considered these and the further material attached to the submissions.

7. The Tribunal exercised its discretion to hold the hearing by telephone conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone conference having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone conference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

8. The applicants were represented in relation to the review by their registered migration agent.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in respect of all applicants.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary applicant satisfies the criteria in cl.187.234 for the grant of the Subclass 187 visas to all visa applicants.

    Skills and qualifications

11. 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 (and 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.

12. For visa applications made on or after 18 March 2018, (not the case here) 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.

13. For the purposes of the criteria in cl.187.234, the relevant classes of exempt persons have been specified in IMMI 12/060 of the Register of Instruments: Business visas, and the occupations and relevant assessing authorities have been specified in IMMI12/096 of the Register of Instruments.  In respect of 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.

14. The application for the Subclass 187 visas in this case is a joint application with the primary applicant’s de facto partner, lodged on 13 February 2018 under the Direct Entry stream. As aforementioned, the criteria set out in cl.187.234 must be satisfied by the primary applicant at the time of application. 

15. For the grant of the visa, the applicant must satisfy one of the three alternatives (a to c) set out in cl.187.234 of Schedule 2 of the Regulations which provides as follows:

    cl.187.234

    At the time of application:

    (a) the applicant was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph; or

    (b) all of the following requirements were met:

    (i) the applicant’s occupation is specified by the Minister in an instrument in writing for this subparagraph;
    (ii) the applicant did not obtain the necessary qualification in Australia;
    (iii) the applicant’s skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph (i) as the assessing authority for the occupation;
    (iv) the assessment was not for a Subclass 485 (Temporary Graduate) visa;
    (v) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment - the period had not ended;
    (vi) if subparagraph (v) did not apply - not more than 3 years had passed since the date of the assessment; or

    (c) if neither paragraph (a) nor (b) applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

16. The legislative instrument refers to the following classes of persons as exempt from skill requirement for the purposes of cl.187.234(a) of the Regulations:

    Class 1 - Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Tax Office’s top individual income tax rate.

17. At the hearing, the applicant told the Tribunal that she was being remunerated approximately $50,000 per year, plus superannuation, at the time of application. The applicant’s current employer has provided a work reference letter dated 10 May 2020 setting out that the applicant has been employed at Sailing Whitsundays from 27 August 2017 on a full time basis and the Tribunal accepts the applicant’s earnings are broadly consistent with the level of remuneration above. The Tribunal finds that the level of remuneration for the nominated position is less than the current Australian Tax Office top individual income tax rate which is significantly higher.

18. Accordingly, the applicant is not exempt from the skills requirement as a person under Class 1, as the applicant’s level of remuneration is lower than the Australian Tax Office top individual income tax rate.

    Class 2 - Persons who hold a Subclass 444 – Special Category visa; or Subclass 461 – New Zealand Citizen Family Relationship (Temporary) visa, and who have been working in their nominated occupation for their nominating employer for at least two years (excluding any periods of unpaid leave) in the previous three years, immediately before applying for their Subclass 187 Regional Sponsored Migration Scheme visa.

19. The Department’s Movement Details record that the applicant first entered Australia on 21 June 2002 as the holder of a Class UD, Subclass 976 visa. She has subsequently held Subclass 417 (Working Holiday) visas granted initially on 12 November 2015 and a further Subclass 417 visa from 9 January 2017 valid until 12 February 2018.  The applicant has remained on Bridging visas pending the outcome of this review.

20. The applicant responded, when asked, that she has not held any Subclass 444 or 461 visa. This is consistent with the Department’s Movement Details.  Accordingly, the Tribunal finds from this evidence that the applicant is not a person under Class 2 above as she does not hold a Subclass 444 or 461 visa.

21. Therefore, the applicant does not meet cl.187.234(a).

22. At the hearing the applicant confirmed that the position for which she seeks the Subclass 187 visa is for the role of Travel Agency Manager. The Tribunal accepts from this and the application documents lodged that the application is for appointment to the position of  Travel Agency Manager (ANZSCO 142116) being a Skill Level 2 occupation (discussed further below).

23. The nominated occupation is not an occupation specified by the Minister in the instrument IMMI12/096 of the Register of Instruments in respect of cl.187.234(b)(i). Therefore, cl.187.234(b) does not apply.

24. The Tribunal finds that at the time of application, the applicant was neither a person in a class of persons specified by the Minister in a legislative instrument for paragraph 187.234(a), nor was her occupation specified by the Minister in a legislative instrument for subparagraph 187.234(b)(i). As neither paragraph subclauses 187.234(a) nor (b) apply, the applicant must establish that she has qualifications listed in ANZSCO 142116 as being necessary to perform the tasks of the nominated occupation, or relevant experience in the alternative that may substitute for the formal qualification. 

25. The ANZSCO database states that most occupations in this unit Group 1421 have a level of skill commensurate with an Australian Qualifications Framework (AQF) Associate Degree, Advanced Diploma or Diploma qualification. At least three years of relevant experience may substitute for the formal qualification listed above. Registration or licensing may be required. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification - Skill Level 2.

26. The applicant’s evidence is that she holds a Diploma in Leadership and Management which was conferred in Queensland, Australia in 2017.  She told the Tribunal that this was as a result of recognition of prior learning (RPL) of other certificate level qualifications she completed overseas and in Australia prior to lodging her application. She also holds a Diploma in Hairdressing which the applicant acknowledges is not a relevant qualification for the nominated occupation. The applicant submits that her Diploma in Leadership & Management was issued by the International Institute of Business and Management, an Australian Registered Training Organisation (RTO) on 29 November 2017 on the basis of RPL.  At the hearing the applicant confirmed, when asked, that she undertook no course work for the qualification in Australia.  She further submits that she obtained the qualification following assessment completed in Australia that took into consideration the RPL. The Tribunal has had regard to the CRICOS reference IIBM65911 of the RTO and accepts from this and the applicant’s oral evidence that the International Institute of Business and Management is an Australian Registered Training Organisation (RTO No: 41170).

27. The Tribunal has had noted the delegate’s comments as follows:

    …  “ For the purpose of RSMS and under policy, RPL cannot substitute for all of the course content in a credit transfer arrangement but may only apply to a small number of completed assessment items… As there is no evidence as to the nature and extent of assessment undertaken by the International Institute of Business and Management prior to issuing the Australian qualification certificate on the basis of Recognition of Prior Learning (RPL), the evidence does not satisfy that that qualification document issued on the basis of Recognition of Prior Learning (RPL) reflects that an appropriate level of assessment was undertaken as evidence for skills acquired during a formal course of learning. I have therefore, formed the view that Regulation 187.234(c) has not been met. …“

28. The Tribunal has also considered the applicant’s submission that “it is up to the qualified assessor to decide if he/she is satisfied that the enrolled student satisfies course requirements on the basis of credit transfer or RPL. The comment of the decision maker emphasising the fact of qualifications being obtained by RPL is not relevant to the matter at hand in the context of discussed regulation.” …

29. The Tribunal has independently assessed the issue of RPL for the conferral of the applicant’s qualification and notes, in particular, the below Policy Instruction PI 7.13.1. 2. from the departmental guidelines, which the Tribunal considers should be applied in this case:

30. An extract from that Policy Instruction is as follows:

    … “The rationale behind the concept of RPL understood this way is that it allows students of a course studied at one institution in a given location, to seek “credit transfer arrangements” (the term used within the AQF provisions) with a different institution in a different location, offering the same or similar course content.” …

31. However, the Policy Instruction continues: “For the purpose of RSMS and under policy, RPL cannot substitute for all of the course content in a credit transfer arrangement but may only apply to a small number of completed assessment items… .” (emphasis added).

32. In this particular case the applicant’s own oral evidence, which the Tribunal accepts, is that she did not undertake any coursework in Australia for the Diploma of Leadership and Management qualification. Given this, the Tribunal considers that it cannot be said that PRL applied to only “a small number of completed assessment items” and finds, in this particular case, that RPL has substituted for the course content in the applicant’s credit transfer arrangement.  The Tribunal considers that the applicant does not satisfy the requisite Australian Qualifications Framework (AQF) criteria to substitute for the Skill Level 2 Diploma or higher level qualification in ANZSCO 142116.

33. Accordingly, the applicant’s Diploma of Leadership and Management qualification relied upon does not satisfy the requirements of cl.187.234(c) at time of application as being necessary to perform the tasks of the nominated occupation. The applicant must, therefore, demonstrate that at the time of application, she had at least three years of relevant experience to substitute for the formal qualifications listed in ANZSCO.

34. The applicant submits that according to the PAM 3 procedural guidelines, in order to substitute a formal qualification at Diploma level, she must evidence a minimum of 3 years’ experience in the nominated occupation or an occupation closely related to nominated occupation. The Tribunal has had regard to the Department’s PAM 3 procedural guidelines and accepts the applicant’s submission. The Tribunal notes that occupations belonging to the same ANZSCO Unit group 1421 have the same tasks and duties listed for that of Retail Managers generally, as follows:

    ·determining product mix, stock levels and service standards

    ·formulating and implementing purchasing and marketing policies, and setting prices

    ·promoting and advertising the establishment's goods and services

    ·selling goods and services to customers and advising them on product use

    ·maintaining records of stock levels and financial transactions

    ·undertaking budgeting for the establishment

    ·controlling selection, training and supervision of staff

    ·ensuring compliance with occupational health and safety regulations.

35. The applicant acknowledges in her written submissions that she has not been working for 3 years as a Travel Agency Manager, but emphasises that she has been involved in retail managerial duties for over 3 years, performing the tasks and duties prescribed for in ANZSCO Unit Group 1421. The applicant’s submission is that the table attached at the end of this decision compares her business references with tasks & duties relevant to ANZSCO Unit Group 1421 for the purposes of demonstrating that she has the requisite knowledge and skills necessary to perform the tasks of the nominated occupation of Travel Agency Manager.

36. The Tribunal has had the benefit of considering additional material not before the delegate previously. This includes the applicant’s oral evidence and written submissions including the detailed table of tasks and skills listing the various occupations and positions held over the years.  This has included work in the following roles:

    ·Halfway House Pub - Team Leader    1.04.2011 - 15.10.2015

    ·Red Cat Adventures - Paradise Cove Resort - Head Housekeeper   15.05.2016 - 15.11.2016

    ·Whitsunday Catamarans - Head Housekeeper     1.01.2017 - 22.07.2017

    ·Sailing Whitsundays - Travel Agency Manager        27.08.2017 - current.

37. The Tribunal places some weight on the circumstances that the applicant has most recently been working full time specifically in the role of Travel Agency Manager since August 2017 with Sailing Whitsundays. According to ANZSCO this occupation “Organises and controls the operations of a travel agency.”  Her employer, Mr Keith Roberts was able to provide particulars of the duties undertaken by the applicant including: ordering linen, stock control and checking supplies, marketing, rostering of staff, training of staff and other managerial and related duties. However, at the time of application, the applicant’s work in that role covered only a duration of some 6 months and so the Tribunal has considered the applicant’s further relevant experience for the purposes of assessing the requirement under cl.187.234(c).

38. The Tribunal has carefully considered the applicant’s oral evidence and written submissions including the detailed table of tasks and skills demonstrated over the years in the various occupations and positions held.  In the context of the duties undertaken by the applicant in her various roles described in the table and her oral evidence, the Tribunal is satisfied that the applicant has demonstrated sufficient relevant work experience at Skill Level 2 consistent with the tasks listed in ANZSCO Group unit category 1421 to substitute for formal AQF qualifications at Diploma level for the nominated occupation. The Tribunal is satisfied that, as at the date of lodging her application on 13 February 2018, the applicant had demonstrated over 3 years of relevant experience for the nominated occupation.  

1. From the available evidence before it discussed, the Tribunal is satisfied that the applicant had at least three years of relevant experience to substitute for formal qualifications in ANZSCO 142116 necessary to perform the tasks of the occupation of Travel Agency Manager at the time of lodging the application for the visas.  Accordingly, the applicant meets cl.187.234(c).

2. The Tribunal further notes that at the time of application the applicant had not been employed in the nominated occupation for at least 3 years on a full-time basis, at the skill level required for the occupation.  However, this criterion is not required, in the circumstances here, for applications lodged before 18 March 2018.

3. Therefore, cl.187.234 is met.

4. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa in respect of all applicants including the second named applicant as claimed member of the same family unit (de facto partner) as the primary applicant.

   DECISION

5. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration in respect of all applicants, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

   ·cl.187.234 of Schedule 2 to the Regulations.

   Stavros Georgiadis

   Member

   Halfway House Pub – Team Leader    01.04.2011 - 15.10.2015

ANZSCO

Tasks & Duties

·     Determining product mix, stock levels and service standards

·     Stock management, rotating stock, counting stock levels, accepting and checking deliveries

·     Formulating and implementing purchasing and marketing policies, and setting prices

·     Promoting and advertising the business by posting on social media, creating displays inside and out and promoting seasonal drinks and meals.

·     Promoting and advertising the establishment's goods and services

·     Promoting and advertising the business by posting on social media, creating displays inside and out and promoting seasonal drinks and meals.

·     Selling goods and services to customers and advising them on product use

·     Serving beverages to customer

·     Handling Complaints

·     Maintaining records of stock levels and financial transactions

·     Till checks, ensuring tills are balanced and no monies lost during shift.

·     Cash handling, taking payments from customers.

·     Banking, depositing the weekly takings at the bank.

·     Stock management, rotating stock, counting stock levels, accepting and checking deliveries.

·     Undertaking budgeting for the establishment

·     Producing a marketing budget, setting a yearly budget to allocate funds for events and

·     planning for peak seasons.

·     Controlling selection, training and supervision of staff

·     Running shifts, making sure staff have what they need to perform their duties.

·     Overseeing staff to ensure high quality service is being provided.

·     Spot checking lines of stock.

·     Ensuring compliance with occupational health and safety regulations

·     End of day and start of day procedures, counting up daily takings, loading information to secure system, securing building at end of shift and preparing tills for next day’s trading.

Whitsunday Catamarans – Head Housekeeper    01.01.2017 - 22.07.2017

ANZSCO

Tasks & Duties

·     Determining product mix, stock levels and service standards

·     Ordering and stocktake checks

·     Linen orders

·     Formulating and implementing purchasing and marketing policies, and setting prices

·     Responding to messages and enquiries

·     Promoting and advertising the establishment's goods and services

·     Picking-up and dropping off the guests and collaboration with other branches of the company

·     Selling goods and services to customers and advising them on product use

·     Taking bookings for our Airbnb properties

·     Relaying important information to guests such as check in details

·     Maintaining records of stock levels and financial transactions

·     Ordering and stocktake checks

·     Undertaking budgeting for the establishment

·     Establishing a cleaning budget for the Airbnb

·     Controlling selection, training and supervision of staff

·     Hiring new staff for the busier periods

·     Train successful applicants in our cleaning practices and work policies, making sure they were trained to a high standard and following safe practices.

·     Ensuring compliance with occupational health and safety regulations

·     Inspection of rooms after cleaning

·     Cleaning of rooms

(Red Cat Adventures) - Paradise Cove Resort - Head Housekeeper    15.05.2016 - 15.11.2016

ANZSCO

Tasks & Duties

·     Determining product mix, stock levels and service standards

·     Stock taking - Counting all cleaning supplies and monitoring stock rotation

·     Formulating and implementing purchasing and marketing policies, and setting prices

·     Marketing and promoting the business - running our social media platforms, running marketing campaigns on Facebook, and capturing media for Instagram and other promotions for Paradise Cove, handling and negotiating bookings through our social media platforms

·     Promoting and advertising the establishment's goods and services

·     Meeting with local agents - Meetings to ensure local agents were happy and ensuring they understand what the tour consisted of and pricing

·     Selling goods and services to customers and advising them on product use

·     Liaising with guest - Making sure guests were happy and guest requirements were met

·     Maintaining records of stock levels and financial transactions

·     Stock taking - Counting all cleaning supplies and monitoring stock rotation

·     Undertaking budgeting for the establishment

·     Establish a cleaning budget for the resort - planning a budget and making sure allocated funds were applied

·     Controlling selection, training and supervision of staff

·     Training staff to ensure high standards are met and followed in a manner that corresponds with Health and Safety standards

·     Staff work rostering - Ensuring rosters were complete for the other 6 staff members

·     Delegating daily work duties to a team of 6 workers - Making sure staff were aware of their role for the day and what needed to be done

·     Ensuring compliance with occupational health and safety regulations

·     Ordering of cleaning supplies and PPE - Making sure all staff had correct PPE to maintain health and safety standards

·     Room inspections - Completed to make sure rooms were cleaned to a high standard and checking for damages

Sailing Whitsundays -     Travel Agency Manager       27.08.2017 - current

ANZSCO

Tasks & Duties

·     Determining product mix, stock levels and service standards

·     Setting overall direction and objective of operations for the business including organizing functions an entertainment activity for guests, organizing special requests from guests, responding to complaints and suggestions

·     Formulating and implementing purchasing and marketing policies, and setting prices

·     Formulating, administering and reviewing procedures and policy to ensure smooth operations of the travel business

·     Co-ordinating the activities of housekeeping, transport and reservation departments

·     Promoting and advertising the establishment's goods and services

·     Answering enquiries from the general public, service agents & customers visa telephone, face-to-face and email, as well as dealing with complaints

·     Organizing, coordinating and displaying promotional material in an effective manner.

·     Promoting and marketing business and products

·     Selling goods and services to customers and advising them on product use

·     Management of Sailing Whitsundays Travel store, including the management of all booking that come through for the boats, tours and Airbnb’s.

·     Liaising with customers, providing excellent services an promoting the business in a positive way

·     Maintaining records of stock levels and financial transactions

·     Handling and receipting of payments from customers

·     Handling and checking all aspects of the manifesting system

·     Undertaking budgeting for the establishment

·     In charge of the store budget, having weekly meetings with the accountant and setting targets to achieve 10% growth on previous years revenue.

·     Controlling selection, training and supervision of staff

·     Training of new staff to ensure customer service standards are met

·     Ensure new staff members have a good understanding of booking a computer system and also office procedures manual

·     Ensuring compliance with occupational health and safety regulations

·     Organizing the monthly maintenance of Airbnb’s and Store

·     Monitoring and evaluating overall departmental
performance and adjusting policies, rules and regulations to ensure objectives are met

·     Ensuring the business comply with regulations and industry requirements