Pritchard (Migration)

[2020] AATA 4161

Pritchard (Migration) [2020] AATA 4161 (28 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Katy Pritchard

CASE NUMBER:  1829651

HOME AFFAIRS REFERENCE(S):          BCC2017/351142

MEMBER:Stavros Georgiadis

DATE:28 September 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the 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 28 September 2020 at 4:23pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accountant (General) – skills and qualification – ANZSCO Skill Level 1 – formal qualification – Advanced Diploma of Accounting – at least 5 years of relevant experience – sufficient to ‘substitute’ for formal qualification – 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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 January 2017. 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 applicant is seeking the visa in the Direct Entry stream to work in the nominated occupation of Accountant (General) ANZSCO 221111.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations as the delegate considered the applicant is not the holder of a bachelor degree or higher level qualification to satisfy ANZSCO Skill Level 1 for the nominated occupation or had the skills necessary to carry out the duties of that occupation at the time of application.

6. The applicant appeared before the Tribunal on 20 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence from employer representatives, Ms Elizabeth Prell from NT Link and Scott Petrick, Finance Manager.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. 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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The applicant was represented in relation to the review by her registered migration agent.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is able to meet the criteria in cl.187.234 of the Regulations for the grant of the Subclass 187 visa.

    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 IMMI12/060 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.  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. For the grant of the visa, the criteria set out in cl.187.234 must be satisfied by the applicant at the time of application, being 26 January 2017. 

15. 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 relevant 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. The applicant’s evidence is that the annual remuneration for her work as a Senior Finance Officer was $65,000 per year at the time of application (plus superannuation at the Superannuation Guarantee rate of 9.5%).  The applicant’s oral evidence is that her current remuneration is $72,000 per year.  The applicant’s employer was present at the hearing to confirm level of earnings. The Tribunal accepts that the level of remuneration for the nominated position is less than the material Australian Tax Office top individual income tax rate of $180,000 which is significantly higher than the applicant’s remuneration.

18. Accordingly, the applicant is not exempt from the skills requirement as a person under Class 1, as her level of remuneration for the nominated role 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 in respect of the applicant record that she has, in the past, held a Subclass 457 visa granted on 18 March 2014 and also Subclass 417 (Working Holiday) visas prior to that time.  There is no evidence that the applicant has held any Subclass 444 or 461 visa.  From this, 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 is Accountant (ANZSCO 221111). The nominated occupation is not an occupation specified by the Minister in the Register of Instruments IMMI12/096 for the purposes of cl.187.234(b)(i). Therefore, cl.187.234(b) does not apply.

22. 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). As neither paragraph subclauses 187.234(a) nor (b) apply, the applicant must establish that at the time of application she had qualifications listed in ANZSCO commensurate with the skill level necessary to perform the tasks of the nominated occupation.

23. According to ANZSCO 221111, the indicative skill level for an Accountant (General) is Skill Level 1, commensurate with a bachelor degree or higher qualification. The Tribunal notes that the delegated noted that ANZSCO does not indicate that employment experience may substitute for formal qualifications. Rather, the delegate proceeded on the basis that ANZSCO provides "In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1)."  The consideration of relevant work experience for any material period is discussed further below.

24. The applicant’s formal qualification is an Advanced Diploma of Accounting which is below the level of a Bachelor degree for the purposes of assessment against cl.87.234(c). The applicant acknowledges that she is not the holder of a Bachelor degree or a higher qualification.  However, she relies on relevant experience over more than 5 years to demonstrate skills commensurate with Skill Level 1 to meet 187.234(c).

25. On 14 September 2018 the applicant provided written submissions to the Department in response to the invitation to comment on the issue of relevant qualifications for the role and work experience.  The applicant referred to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) First Edition (cat. no:1220.0) released in September 2006 setting out as follows:

    ”…We acknowledge that the ANZSCO - Australian and New Zealand Standard Classification of Occupations (ANZSCO) First Edition (2006) is currently the basis for occupational classifications for skilled migration purposes… The occupation of Accountant (General) is part of minor group 221 - ACCOUNTANTS, AUDITORS AND COMPANY SECRETARIES and is a skill level 1 occupation. It clearly states in ANZSCO: SKILL LEVEL 1: Occupations at Skill Level 1 have a level of skill commensurate with a Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification…” Following the hearing, the applicant provided additional written submissions and evidentiary material in support of her application.  The submissions of 20 April 2020 set out as following (in part): …

26. The Tribunal has had regard to the nature of the tasks undertaken by the applicant with the various employers as set out above and also in her Curriculum Vitae regarding work experience undertaken prior to lodging her application. The Tribunal accepts that the ANZSCO First Edition (cat. no:1220.0) released in September 2006 (referred to in paragraph 25 above) allows: At least five years of relevant experience may substitute for the formal qualification.The Tribunal finds that the tasks undertaken by the applicant in the period immediately before the application directly relate to the occupation of Accounting or indeed involved her undertaking the role of Accountant, for a period in excess of 5 years in total.  

27. The Tribunal is therefore, satisfied that 5 years of relevant experience here substitutes for the formal qualifications otherwise required by ANZSCO 221111, Skill Level 1 for the nominated occupation of Accountant (General).  The Tribunal is satisfied that the work experience undertaken by the applicant over the material 5 years in aggregate required by ANZSCO is in a relevant technical field for the role sufficient to be commensurate with or ‘substitute’ for the formal qualification relevantly, of Bachelor degree level.[1]

    [1] This is the approach adopted in Departmental policy: Policy: Migration Regulations - Schedules -

28. Therefore, cl.187.234 is met.

29. Accordingly, the Tribunal finds that at the time of application, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation of Accountant (General) ANZSCO 221111 to meet cl.187.234(c).

30. Therefore, cl.187.234 is met.

31. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    decision

32. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the 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

    
    

Permanent Employer Sponsored Entry – ENS and RSMS Visa Applications – Subclasses 186/187 – 3.5.10.2.3 – Assessment under 187.234(c) – streamlined skills assessment for all other applicants (issued 18 August 2019).