Perez (Migration)

[2023] AATA 2800

Perez (Migration) [2023] AATA 2800 (30 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kevin Jose Perez

REPRESENTATIVE:  Mr Glenn Wellburn (MARN: 0850908)

CASE NUMBER:  2015065

HOME AFFAIRS REFERENCE(S):          BCC2020/433837

MEMBER:Ian Berry

DATE:30 June 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Work Regional (Provisional) (Class PS) visa.

Statement made on 30 June 2023 at 4:08pm

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) visa– Subclass 491 – Café or restaurant manager – applicant held a valid skills assessment– course undertaken by the applicant while studying FMEDGE is not a registered course within CRICOS – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)

Migration Act 1958, ss 65,359
Migration Regulations 1994, Schedule 2, cl 491.214

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 (the Department) on 22 September 2020 to refuse to grant the applicant a visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a points-based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The applicant was invited to apply for the visa on 20 December 2019. The criteria for the grant of a Subclass 491 - Skilled Work Regional (Provisional) visa (491 visa) are set out in Part 491 - Skilled Work Regional (Provisional) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy in cl 491.214 because, at the time of the assessment from VETASSESS, the relevant assessing authority, he held a student visa and completed a course, Diploma of Hospitality Management, which was not a registered course. Further, the course was attained from the Focused Management Education Australia which was not a registered educational institution.

3. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue is whether the applicant obtained a positive skills assessment, the qualification of which was attained in Australia having undertaken a registered course, while the holder of a student visa.

   Legal aspects relevant to the issues

6. A registered course is defined in reg 1.03 as follows:

   registered course means a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

7. The Subclass 419 Regulations contain primary and secondary criteria. The primary criteria are contained in division 491.2 which refers to end Notes:

   a.that all the primary criteria must be satisfied by at least one member of the family unit; and   

   b.that all the criteria must be satisfied at the time of decision. 

8. Clause 491.214 is within the primary criteria and provides:

   (1) At the time of invitation to apply for the visa:

   (a)    the relevant assessing authority for the applicant's nominated skilled occupation had assessed the applicant's skills as suitable for that occupation; and

   (b)    the assessment was not for a Subclass 485 (Temporary Graduate) visa; and

   (c)    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; and

   (d)    if paragraph (c) did not apply—not more than 3 years had passed since the date of the assessment.

   (2) If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.

   Facts

9. The applicant entered Australia on 7 July 2006.  He is a citizen of the Federal Republic of Germany and is a single person. 

10. The applicant’s Diploma of Hospitality Management Certificate made 30 May 2017 was attained by studying a course at FMEDGE[1] an Australian educational institution. The applicant’s evidence at the hearing is that to his studies was for 5 days as the course modules were all satisfied as recognised prior learning.

    [1] FMEDGE is the Focused Management Education Developing Global Enterprise.

11. On 15 July 2019, VETASSESS provided the applicant with a positive assessment. The assessment is set out in the following terms:

    ‘Please find attached the results of your Skills Assessment from VETASSESS for your nominated occupation of Café or Restaurant Manager (ANZSCO Code: 141111).

    Required Skill Level:

    This occupation requires a qualification assessed as comparable to the educational level of an Australian Qualifications Framework (AQF) Diploma, in a field highly relevant to the nominated occupation.

    In addition to this, applicants must have at least one year of post-qualification employment at an appropriate skill level completed in the last five years in a field which is highly relevant to the nominated occupation. If employment is not post-qualification, then three additional years of highly relevant employment are required.

    If the qualification is not in a highly relevant field, two years of employment at an appropriate skill level, completed in the last five years which is highly relevant to the nominated occupation is required. This is reduced to one year if there is an additional qualification at least at AQF Certificate IV level in a highly relevant field.

    A positive assessment of both qualifications and employment is required for a positive Skills Assessment Outcome.

    Points Test Advice:

    For Points Test Advice, VETASSESS counts skilled employment within the last ten years in the nominated occupation or an occupation in the same ANZSCO Unit group. Years needed to meet the Skills Assessment requirements will not be counted.

    Please submit this page and the following Skilled Migration Assessment outcome to the Department of Home Affairs to support your visa application.

    Yours sincerely,

12. VETASSESS attached to its letter the document headed ‘SKILLED MIGRATION ASSESSMENT’. It states the applicant’s qualifications than being a Diploma of Hospitality Management completed in 2017 at Focused Management Education, Australia and is assessed as comparable to the educational level of an AQF[2] Diploma and is therefore at the required level. It further states that the field of study Hospitality Management is highly relevant. It provides further information concerning the assessment of his employment.

    [2] Australian Qualifications Framework

13. On 20 December 2019, the applicant was invited by the Department to apply for a 491 visa.  The Part 491 Regulations provide different pathways.  The applicant’s pathway was a State/Territory Government Nominated Regional pathway with the nomination from the Queensland government. 

14. On 14 February 2020, the applicant made his 491 application in which he specified his nominated occupation as Café or restaurant manager. Also, the applicant specified his qualification as the Diploma of Hospitality Management, attained in 2017 at FMEGDE. 

15. While the applicant’s Diploma of Hospitality Management may be within the Australian Qualifications Framework as declared on the qualification certificate made 30 May 2017, it neither stated that the qualification was attained by studying a registered course nor that FMEDGE was a registered educational institution.

    Delegate’s decision and reasons

16. The Department’s decision of 22 September 2020, stated a review was conducted with the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) under Section 10 of the Education Services for Overseas Students Act 2000, could not find either a registered course entitled ‘Diploma of Hospitality Management’, or the registered educational institution which provided that course.

17. The Department provided the opportunity for the applicant to comment by letter dated 6 March 2022. The applicant responded on 1 April 2020. The applicant conceded that the applicant held a student visa while undertaking his course was not registered, but the applicant provided reasons supporting the applicant:

    ‘It is noted that the concern raised in s57 notice relates to regulation 491.214 and more specifically subitem (2). We will outline further detail in support of this position but in brief the applicant cannot fail in satisfying 491.214(2) on account that the wording of this sub regulation does not relate to the circumstances of the applicant and the basis on which they attained a positive migration skills assessment in their nominated occupation. To clarify, the leading phrase of 491.214 (2) is clear in stating that the clause is applicable to applicants who can and subsequently attain a positive skills assessment ‘on the basis of a qualification obtained in Australia’.  This is not the case for the applicant as the skills assessment for their nominated occupation ‘Café or restaurant manager’ is not possible to attain on the basis of a qualification.

    In stating the above, we duly note and respect some of the additional elements outlined by the delegate in the section 57 notice. We do so to indicate that such points are not contested in terms of accuracy. The fact that the applicant attained the Australian qualification while holding a student visa and such qualification was not attained as a result of a registered course is not disputed.[3] What is disputed is that the skills assessment was clearly not attained on the basis of the qualification as this is in fact impossible for the nominated occupation of the applicant. This is an important acknowledgment as the s57 notice does not address the qualifying phase to apply regulation 491.214(2). To quote the s57 notice the delegate has outlined;’

    [3] Underlining was inserted by the Tribunal.

    -Page 2 Paragraph 6 – ‘This skills assessment states that your assessment was based on your several factors…’

    This is important as a skills assessment based on several factors is not equivalent to the qualification phase to apply regulation 491.214(2) being ‘If the assessment was made on the basis of a qualification’.

    Further in s57 notice the delegate indicates the following assessment consideration;

    -  Page 2 – Paragraphs 10-11

    With respect to subclause 491.214(2), if a skills assessment was made on the basis of a qualification obtained in Australia while the applicant held a Student visa, the course must be a registered course.

    Departmental records shows that you held a Student visa (subclass 572) from 5 May 2016 to 30 June 2017 and in your visa application you declared you undertook the study for your Diploma of Hospitality Management at FMEDGE from 26 May 2017 to 30 May 2017.

    The s57 notice proceeds directly to the consideration of whether the applicant satisfies elements of the subclause 491.214(2) without first addressing in detail the primary qualifying phase and whether it applies to the circumstances of the applicant.

    Accordingly, we now provide further detailed submission in support of this clear position that 491.214(2) is not applicable to the circumstances of the applicant.

    For thoroughness we dissect the elements of 491.214 (2) and apply same in relation to the circumstance of the applicant.

    For thoroughness we dissect the elements of 491.214 (2) and apply same in relation to the circumstance of the applicant.

    If

    While simple it is important to establish that the presence of the proceeding clause to ‘if’ makes it clear that an applicant must meet such circumstances in order for the balance of the clause requirements to apply.

    ‘the assessment’

    As 491.214 (2) is a sub-regulation to the overall clause the establishment of ‘the assessment’ as

    prescribed in (1) is a vital consideration. In this ‘the assessment’ is one which must have been:

    ·Attained prior to date of invitation to apply for the subclass 491 visa; and

    ·Supplied by the relevant assessment authority in this case (VETASSESS); and

    ·For the applicants nominated skilled occupation in this case (Café or restaurant manager); and

    ·a positive skills assessment confirming the applicant has skills suitable for the occupation; and

    ·a full migration skills assessment and not skills assessment for purpose of subclass 485 graduate visa; and

    ·be attained within the set validity period.

    Noting the above, key points relating to the application of 491.214 (2) are that ‘the assessment’ must be through VETASSESS, in the occupation Café or Restaurant Manager and that the body being VETASSESS must have confirmed the applicant’s skills as suitable. It is acknowledged in s57 notice that there is no contention relating to the applicant satisfying 491.214 (1). Accordingly, it is confirmed that ‘the assessment’ attained by the applicant for the purpose of
    491.214 (2) is that prescribed by 491.214(1) being ‘positive migration skills assessment through VETASSESS in the nominated occupation of café or restaurant manager’.

    ‘was made’

    Simple yet pivotal in considering the overarching application of the legislative clause, ‘was made’ relates to the attainment of the decision from VETASSESS to approve the applicant’s skills as suitable for the nominated occupation.  Combined ‘the assessment was made’ indicates the attainment of decision/conclusion that the applicant’s skills assessment was suitable for the nominated occupation. This is distinctively different to method of conducting skills assessment in general.

    ‘on the basis of’

    In the context of reaching a particular outcome, in this case for a positive skills assessment, the ‘basis’ is ‘the justification for or reasoning behind’ reaching a decision that the applicant’s skills were suitable to the nominated occupation.

    ‘a qualification’

    In context of the legalisation qualification is intended to be an educational qualification. In

    addition, ‘a’ is singular, indicating a sole factor of consideration and justification. Combined ‘on the basis of a qualification’ means positive skills assessment attained solely on holding ‘a qualification’.

    Combined, the qualifying component as to the application of 491.214 (2) is the phase:

    ‘If the assessment was made on the basis of a qualification…’

    At the time the applicant applied to VETASSESS for a migration skills assessment in the nominated occupation the requirements were clear and are listed in the skills assessment decision record provided with the visa application. In this decision record VETASSESS clearly states:

    A positive assessment of both qualifications and employment is required for a positive Skills Assessment Outcome.

    The clarity of this requirement cannot be understated in terms of applying the relevant regulation to the applicant.  To clarify it is certainly possible for a prospective migrant to apply to VETASSESS for a migration skills assessment in the designated occupation.  In such application a person can submit ‘a qualification’ as the basis of their skills.  Subsequently VETASSESS can conduct an assessment of the documents supplied by such applicant however in the absence of supplying documents to support the years of employment history in the nominated occupation, VETASSESS can reach no conclusion other than to deem the applicant’s skills as being unsuitable for the nominated occupation.  Accordingly, it is not possible to attain a positive migration skills assessment from VETASSESS in the occupation of café or restaurant manager ‘on the basis of a qualification’.

    The above is further supported when review of the original introduction of the clause in question to the skilled migration program is made. The clause in question was originally introduced 1 July 2006 and was applied to the suite of general skilled migration visa subclass at the time. The primary subclass being skilled independent subclass 136.  The explanatory statement to instrument (F2006L01876) which introduced the clause outlined the basis for this clause as follows:

    Item [19] – Schedule 2, clause 136.222

    …

    The purpose of this amendment is to ensure that where an applicant seeks to satisfy the primary criteria for the grant of a Subclass 136 visa on the basis of an Australian qualification obtained while the applicant was the holder of a student visa, the qualification must have been obtained as a result of studying a full time course that is registered on the Commonwealth Register of Institutions and Courses for Overseas Students.

    …’

    Information to comment or respond to information: sec 359A

18. On 20 March 2023, the Tribunal provided the following information to the applicant with the invitation for him to comment or respond to that information:

    ·The skills assessment issued by VETASSESS for a Diploma of Hospitality Management completed in 2017 at Focused Management Education Developing Global Enterprise (also known as ‘FMEGDE’).

    ·Investigation of FMEDGE reveals that it is an educational institution in Victoria, however, a search of Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) reveals it may not be a registered institution.

    ·If FMEDGE is not a registered educational institution, then the course may not be a registered course leading to your qualification. The skills assessment may not be valid.

    The Tribunal considered the above information to be relevant to the review because the information provided to the Tribunal may lead to the conclusion that FMEGDE is not an educational institution registered with CRICOS.  That the course studied by you at that educational institution is not valid and may not support the qualification upon which your skills assessment is relied upon by you.

    Clause 491.214(2) requires your qualification must be attained while holding a student visa and by studying a registered course at a CRICOS registered educational institution.

    If we rely on this information in making our decision, we may decide that your qualification cannot be relied on which may be a reason, or part of the reason to affirm the delegate’s decision.

    You are invited to give comments on or respond to the above information in writing.

19. The applicant was invited to provide his comments or response by 3 April 2023, and he did respond with the following.

    ‘Thank you for your correspondence and opportunity to comment on the information outlined. We confirm this correspondence has been relayed to the applicant and we have received instruction to respond.

    With reference to the tribunals correspondence 20 March 2023, clause 491.214(2) of the migration regulations is cited.  However, the actual wording of this clause has not be considered or addressed. In this regard a detailed submission included in the application, in response to section 57 notice, was supplied to the Department of Home Affairs (DOHA). This submission is dated 1 April 2020 and we understand would form part of the file transferred from the DOHA to the tribunal on receipt of confirmation that merits review had been applied for by the applicant.

    For convenient reference we attach a copy of this correspondence and confirm this response remains relevant, and was not addressed in any substantial detail by the delegate.

    With respect to the allocated member, we note the possibility that this submission has not been specifically directed to their attention. We reconfirm that this submission correctly identifies the relevant consideration prescribed by regulation 491.214(2) and how it applies to the circumstances of the applicant. Specifically, the relevant consideration is ‘if the skills assessment was made on the basis of a qualification’. For the further detailed reasons outlined in the submission, we reconfirm that the positive skills assessment attained by the applicant was not made by the assessing authority on the basis of ‘a qualification’. Accordingly, the balance of the clause 491.214(2) cannot be legitimately applied and with a positive skills assessment conducted by the skills assessment authority on the basis of combined qualifications and employment history, the applicant holds a skills assessment that addresses the collective requirements of regulation 491.214. Accordingly, the application can be remitted to the DOHA with such relevant direction.

    Kind regards’

1. The Tribunal confirms having considered the submissions made to the Department. The applicant does not challenge that on 5 May 2016 the applicant was the holder of a TU-572 visa. This is a student visa.

   Conclusion and findings

2. The Tribunal is satisfied the applicant had a positive skills assessment from VETASSESS and that VETASSESS is the proper assessment organisation to undertake that assessment.

3. The Tribunal is satisfied that the skills assessment was based on both the applicant’s experience and qualification. His qualification is the Diploma of Hospitality Management

4. The Tribunal is satisfied and at the time of the assessment the applicant held a student visa and the certificate of completion of the course, was made by FMEDGE on 30 May 2017. FMEDGE is and Australian educational institution.

5. The Tribunal is satisfied that the assessment was made on the basis of a certificate/qualification from FMEDGE on 30 May 2017, when the applicant held a student visa.

6. The Tribunal undertook a CRICOS search of both the educational institution FMEDGE and the course Diploma of Hospitality Management. The Tribunal is satisfied that this course undertaken by the applicant while studying FMEDGE is not a registered course within CRICOS.

7. The Tribunal finds that the applicant did not meet cl. 491.214(2) and therefore did not meet cl. 491.214.

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a Skilled Work Regional (Provisional) (Class PS) visa.

   Ian Berry
   Member