Pretorius (Migration)

[2020] AATA 4544

Pretorius (Migration) [2020] AATA 4544 (22 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ewalda Elizabath Pretorius
Mr Alexander Marthinus Pretorius

CASE NUMBER:  1809120

HOME AFFAIRS REFERENCE(S):          BCC2016/3750655

MEMBER:Stavros Georgiadis

DATE:22 October 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 22 October 2020 at 5:33pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Residential Care Worker – skills and qualifications – qualification and work experience completed after date of visa application – unpaid volunteer ‘work’ – decision under review affirmed

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 9 November 2016. 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, 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 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 Residential Care Worker (ANZSCO 411715).

5. The delegate refused to grant the visas because the primary applicant did not meet cl.187.234 of Schedule 2 to the Regulations. The delegate considered the applicant did not have the relevant qualifications or sufficient work experience listed in ANZSCO as being necessary to perform the tasks of the relevant skill level for the occupation and the delegate found therefore, that the applicant did not meet sub-regulations 187.234(a), (b) or (c).

6. The applicants appeared before the Tribunal on 21 May 2020 to give evidence and present arguments.

7. The Tribunal exercised its discretion to hold the hearing by teleconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by teleconference 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 teleconference. 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 decision under review should be affirmed.

   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 for all 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 (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, 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 this criterion, 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 that Register of Instruments.  For the purpose 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 spouse, lodged on 9 November 2016 under the Direct Entry stream.  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 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. The nomination application form associated with this matter sets out that the nominee’s salary is proposed at $39,797 per year for the nominated position. At the time of hearing the applicant was being paid at the rate of $57,000 per year. Given the salary proposed, the Tribunal accepts 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 than the rate the applicant was proposed to be paid or was actually paid.

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. From the department’s Movement Details, it is evident that the applicant held a Class FA Subclass 600 (Visitor) visa in the past granted on 15 November 2013 for three years.  There is no evidence that the applicant has held a Subclass 444 or 461 visa. The Tribunal finds that the applicant is not a person under Class 2 above as she does not hold a Subclass 444 or 461 visa.

20. Accordingly, the applicant does not meet cl.187.234(a).

21. At the hearing the applicant confirmed that the position for which she seeks the Subclass 187 visa relates to the role of Residential Care Officer (ANZSCO 411715). The Tribunal accepts from this and the application documents lodged that the application for the Regional Employer Nomination (Class RN) visa is for appointment to the role of an ANZSCO Skill Level 2 position (discussed further below).

22. The Tribunal has considered whether the applicant meets sub-clause 187.234(b). This will be met if all sub-clause requirements in cl.187.234(b) are satisfied. A failure to meet any one of the requirements of cl.187.234(b)(i) through to cl.187.234(b)(vi) means cl.187.234(b) is not met. At the time of application, the applicant had not provided evidence that her skills have been assessed as suitable for the occupation by a specified assessing authority. This is confirmed on her online application form ‘Application for Permanent Employer Sponsored or Nominated Visa’ which sets out that the applicant did not have a suitable skills assessment. It follows that the applicant does not meet cl.187.234(b)(iii). As cl.187.234(b)(iii) is not met, the applicant therefore, does not meet cl.187.234(b).

23. As neither cl.187.234(a) nor (b) apply, the applicant must establish that she has qualifications listed in ANZSCO 411715 as being necessary to perform the tasks of the nominated occupation, or relevant experience in the alternative that may substitute for the formal qualification. 

24. The nominated occupation of Residential Care Officer is an occupation specified in an Instrument by the Minister in relation to cl.187.234(b)(i) listing the qualifications necessary to perform the tasks of that occupation. The ANZSCO 411715 database states that most occupations in this unit group (4117) have a level of skill commensurate with an Australian Qualifications Framework (AQF) Certificate III including at least two years of on-the-job-training, or AQF certificate IV; or alternatively at least three years of relevant experience as substitute for the formal qualifications - Skill Level 2.

25. The Tribunal notes that the applicant completed a Diploma of Leadership and Management in Australia issued on 30 April 2020 by Leading Age Services Australia (LASA) and has undertaken other elderly abuse and mandatory reporting training requirements. The Statement of Attainment academic record shows that the unit courses of study for the above Diploma were undertaken between 2 March 2020 and 24 April 2020. However, this qualification was completed after the date of application for the visas lodged in November 2016.  This is also the case for work experience undertaken by the applicant in residential care in Australia from 2017 and subsequently.  However, this all post-dates the application date of 9 November 2016 and again, the visa requirements are to be satisfied as at the time of application for the visas.

26. The Tribunal also notes the applicant’s overseas qualifications in Bookkeeping and Accounting issued in 2014 and 2015 respectively. The submission is that approximately 90% of that work is administrative in nature and therefore, relevant experience for the role of Residential Care Officer.  The Tribunal accepts that the applicant has had administrative work experience in the area of Bookkeeping and Accounting but considers this experience is not relevant to the occupation of Residential Care Officer when the duties listed in ANZSCO for the nominated occupation are considered.  The duties are described in ANZSCO generally as ‘providing care and supervision for children or disabled persons in group housing or institutional care.’ The Tribunal notes that the applicant has undertaken work in a residential care facility in Australia from 20 January 2017 with Prescare Aged Services who acknowledge and value the applicant’s above qualifications, but this experience of paid work in Australia again post-dates the time of application for the visas.

27. There is no evidence before the Tribunal that, at the time of application for the visas, the applicant had completed an Australian Qualifications Framework Certificate III including at least two years of on-the-job-training, or alternatively an Australian Qualifications Framework Certificate IV - noting as aforementioned, that the applicant has not provided any suitable skills assessment for the occupation relevant to overseas qualifications.

28. The Tribunal finds that the applicant does not hold a relevant AQF formal qualification specified in ANZSCO 411715 for the nominated occupation.  Accordingly, the applicant’s qualifications do not satisfy the requirements of cl.187.234(c) at time of application as being necessary to perform the tasks of the occupation.  To satisfy the criteria for the visas, the applicant must, therefore, demonstrate that at the time of lodging the visa application she had instead, at least three years of relevant experience.

29. The Tribunal considered whether the applicant had at least three years of relevant experience to substitute for formal qualifications.  At the hearing the oral evidence provided was that the applicant had been caring for her mother and grandmother in residential aged care facility overseas, but confirmed, when asked, that this ‘work’ was unpaid.  The Tribunal has had regard to the letter provided by the applicant from Jabulani Kingsburgh Organisation (Jabulani) in South Africa as evidence of work experience.  The Tribunal has also considered other documents, including the letter dated 6 May 2020 from Monika Prinsloo regarding care assistance provided by the applicant to that person’s parents between 2012 and 2016. The letter of 6 May 2020 states the applicant ”visited my elderly parents to assist them with any task … necessary to maintain their health and wellbeing” …  The Tribunal considers that undertaking ‘visits’ of the nature described in the letter demonstrates a sense of care and nurturing but is not consistent with an employment arrangement between the parties. The letter from Jabulani states that the applicant worked as a voluntary Care Worker at Jabulani from 10 August 2012 until 15 August 2016.  Relevantly, it also states that the Jabulani facility does ‘not have any care workers on their payroll’. This is consistent with the oral evidence provided at hearing of unpaid duties undertaken by the applicant at Jabulani that included care of her mother at that facility over a 4 year period and also separately, care for her grandmother at home, over 4 years.  The Tribunal considers that such ‘work’ is not in the nature of an employment relationship particularly in providing care for one’s own family members (even in a residential care facility) and to the other persons as described, of a voluntary nature.

30. The Tribunal agrees with the delegate’s view that time spent volunteering cannot count towards a visa applicant’s work experience as evidence of their necessary skills, for the purposes of cl.187.234(c).  There is no evidence of any paid employment undertaken by the applicant as a Residential Care Officer for the requisite three years prior to lodging the application for the visas to count as relevant experience for the ANZSCO Skill Level 2 occupation.

31. From the available evidence before it discussed, the Tribunal is not satisfied that at the time of lodging the visa application, the applicant had at least three years of relevant experience to substitute for formal qualifications at the AQF level specified in ANZSCO 411715 necessary to perform the tasks of the nominated occupation of Residential Care Officer. Accordingly, the primary applicant does not meet cl.187.234(c).

32. Therefore, cl.187.234 is not met.

33. 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 by the primary applicant, the decision under review must be affirmed in respect of all applicants claimed as members (spouses) of the same family unit: [cl.187.311].

    DECISION

34. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Stavros Georgiadis

    
    

    Member