Rashed (Migration)

[2022] AATA 3668

Rashed (Migration) [2022] AATA 3668 (12 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MD Abu Jabed Rashed
Mrs Nasrin Sultana

REPRESENTATIVE:  Mr Matthew Gibbs (MARN: 1385786)

CASE NUMBER:  1916904

HOME AFFAIRS REFERENCE(S):          BCC2017/3976034

MEMBER:Katie Malyon

DATE:12 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, 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 12 September 2022 at 4:01 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Cook – applicant provided a favourable skills assessment from Trades Recognition Australia (TRA) –applicant held the necessary qualification obtained in Australia at the time of lodgement of his visa application – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65,360
Migration Regulations 1994, 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 (Cth) (the Act).

2. The applicants applied for the visas on 27 October 2017.  At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. Criteria for grant of a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

4. In the present case, the first named applicant - Bangladeshi national Mr MD Abu Jabed Rashed - is seeking the visa in the Direct Entry stream to continue working full-time in the nominated occupation of Cook ANZSCO 351411 with his employer, the Oriental Hotel Mudgee Pty Ltd T/A Oriental Hotel Mudgee (Oriental Hotel Mudgee).  The nomination application made by the Oriental Hotel Mudgee for the position of Cook was approved on 17 April 2019.   

5. When he launched his Subclass 187 visa application with the Department, Mr Rashed provided evidence of the following Australian qualifications:

   ·AQF Certificate III in Commercial Cookery from the International Institute of Business and Management (the Institute), Clyde NSW Campus conferred on 2 August 2017; and, 

   ·AQF Certificate IV in Commercial Cookery from the Institute completed on 1 September 2017 (that is, just one month after completion of the AQF Certificate III). 

6. The delegate refused to grant the visas on the basis Mr Rashed did not meet cl 187.234 of Schedule 2 to the Regulations. Clauses 187.234(a) and 187.234(b) were not met because they did not apply in this case and, consequently, Mr Rashed was required to meet cl 187.234(c). This requires that: first, the applicant obtained their qualification in Australia; and second, the qualifications are listed in ANZSCO as being necessary to perform the tasks of the nominated occupation. The delegate found that, having regard to immigration policy, Mr Rashed did not satisfy cl 187.234(c)(i) because his qualifications as a Cook were obtained solely on the basis of Recognised Prior Learning (RPL).

7. On 27 June 2019, along with his application for review form, Mr Rashed provided the Tribunal with various documents including his Academic Transcripts for his Certificates III and IV in Commercial Cookery from the Institute.  He also provided an updated resume with details of his employment in the period 14 December 2014 – 24 September 2017 by Whitehouse Properties Pty Ltd (Whitehouse Properties) which operates the Beach Road Hotel at Bondi in Sydney.  It appears Mr Rashed worked consistently for Whitehouse Properties as a Cook on a casual basis.  Since 21 August 2017, he has worked on a full-time basis with the Oriental Hotel Mudgee.  

8. Further, in support of his claimed employment as a Cook, Mr Rashed also provided:

   1)Employee Payment Summaries for the period 14 December 2014 – 24 September 2017 confirming wages received from Whitehouse Properties;

   2)PAYG Payment Summaries issued by Whitehouse Properties to Mr Rashed for the period 10 December 2014 – 30 June 2017;

   3)PAYG Payment Summary issued by the Oriental Hotel Mudgee to Mr Rashed for the period 21 August 2017 – 30 June 2018 confirming his annual income in that 10 month period was $56,298; and,

   4)a recent payslip from the Oriental Hotel Mudgee for the period 20 May 2019 – 26 May 2019 confirming his annual income for the that financial year was $73,720.

9. Subsequently, on 1 September 2020 Mr Rashed provided a favourable skills assessment from Trades Recognition Australia (TRA) dated 20 February 2020 for the occupation of Cook (Commercial Cookery) ANZSCO 351411.

10. The applicants were represented in relation to the review by their registered migration agent, Mr Matthew Gibbs of Oz Migration Assist. 

11. In reaching its decision, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicants on the basis of the material before it, pursuant to

    
    

    s 360(2) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue for consideration by the Tribunal is whether the primary applicant Mr Rashed meets the requirements in cl 187.234 of Schedule 2 to the Regulations. The provisions are extracted in the Attachment to this decision.   

14. By way of summary, for applicants in the Direct Entry stream cl 187.234 requires that at the time of application:

    a)    the applicant is in a specified class of persons (exempt persons); or,

    b)    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,

    c)    if neither of the above applies, the applicant has the qualifications listed in ANZSCO as being necessary to perform the tasks of a specified occupation.

15. 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.  However, as Mr Rashed’s visa application was lodged on 27 October 2017, this provision is not relevant in the circumstances of this case

16. The relevant classes of exempt persons have been specified in IMMI 17/058 and the occupations and relevant assessing authorities have been specified in IMMI 12/096. 

17. 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 3 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.

18. The Tribunal has considered these requirements below. 

    Exempt classes –  cl 182.234(a)

19. IMMI 17/058 provides that, for the purposes of cl 187.234(a), the exempt classes of people are as follows:

    Applicants for Subclass 187 visas who hold a Subclass 444 (Special Category) visa or a Subclass 461 (New Zealand Citizen Family Relationship (Temporary) visa and who have been working in a nominated occupation for the nominating employer for at least two years (excluding any periods of unpaid leave) in the three years immediately before applying for the Subclass 187 visa.

20. The Tribunal has reviewed the Department’s records and is satisfied that Mr Rashed has never held a Subclass 444 or 461 visa. As such, he does not fall within the above category. Since Mr Rashed is not exempt within the meaning of cl187.234(a), he must meet either

    
    

    cl 187.234(b) or cl 187.234(c).

    Skills assessment – cl 187.234(b)

21. This clause requires that, if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia, then the applicant’s skills must have been assessed as suitable for the occupation by a specified assessing authority.

22. IMMI 12/096 is the relevant instrument for these purposes.  The Tribunal is satisfied that this instrument contains Mr Rashed’s nominated occupation of Cook ANZSCO 351411. 

23. In this case, Mr Rashed obtained his Certificate III in Commercial Cookery and his Certificate IV in Commercial Cookery qualifications in Australia.  As noted above, his qualifications were awarded by the International Institute of Business and Management based at its Clyde, NSW Campus.  Accordingly, Mr Rashed was not required to have obtained a skills assessment from TRA which is the specified authority listed in IMMI 12/096. 

24. Since Mr Rashed was not required to have obtained a skills assessment of his occupation of Cook from TRA prior to making his Subclass 187 visa application, the Tribunal finds that cl 187.234(b) of the Regulations does not apply in this case.

25. In passing, as noted above Mr Rashed has since provided the Tribunal with a favourable skills assessment issued by TRA dated 3 February 2020 for the occupation of Cook ANZSCO 351411. 

    Qualifications – cl 187.234(c)

26. To satisfy clause 187.234(c) of Schedule 2 to the Regulations, both of the following requirements must be met:

    (i)the applicant’s occupation was not specified by the Minister in an instrument in writing for subparagraph 187.234(b)(i), or the applicant obtained the necessary qualification in Australia; and,

    (ii)the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

27. Mr Rashed nominated the occupation of Cook ANZSCO 351411 which is listed in the relevant legislative instrument IMMI 12/096 and, relevantly, he obtained his qualifications in Australia.

28. The ANZSCO provides the following information in relation to the tasks and duties of a Cook as well as the following necessary qualifications for the occupation in Australia:

    UNIT GROUP 3514 COOKS

    COOKS prepare, season and cook food in dining and catering establishments.  Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group.  Chefs are included in Unit Group 3513 Chefs.  Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.

    Indicative Skill Level:

    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:  AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    …

    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.

    Tasks Include:

    ·examining foodstuffs to ensure quality

    ·regulating temperatures of ovens, grills, and other cooking equipment

    ·preparing and cooking food

    ·seasoning food during cooking

    ·portioning food, placing it on plates, and adding gravies; sauces and garnishes

    ·storing food in temperature controlled facilities

    ·preparing food to meet specialty dietary requirements

    ·may plan menus and estimate food requirements

    ·may train other kitchen staff and apprentices

    Occupation:

    ·351411 Cook

    351411 COOK

    Prepares, seasons and cooks food in a dining or catering establishment.

    Skill Level: 3

29. As noted above, Mr Rashed obtained his Certificate III in Commercial Cookery on 2 August 2017 and, a month later on 1 September 2017, he obtained his Certificate IV in Commercial Cookery.  Amongst other documentation, he provided the Department with signed letters from the CEO of the International Institute of Business and Management dated 2 August 2017 and 1 September 2017 which state that Mr Rashed provided authentic and sufficient evidence to enable the Institute to assess his RPL in the nominated occupation.  The letters each respectively confirm that Mr Rashed satisfied the requirements for a Certificate III in Commercial Cookery and a Certificate IV in Commercial Cookery.  In addition, the delegate notes that Mr Rashed provided records of his results, as well as the RPL Checklist adopted and applied by the International Institute of Business and Management for its RPL assessment purposes. 

30. The delegate had regard to Departmental policy as set out in the Procedures Advice Manual 3 (PAM 3) which stated that “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 smaller number of completed assessment items”.[1] PAM 3 also provided that, where a decision maker was not satisfied that the qualification reflected an appropriate level of assessment as evidence for skills acquired during a formal course of learning, then they could form the view that cl 187.234(c) was not met.

    [1] Regional Sponsored Migration Scheme (subclass 187) - visa applications (immi.gov.au)

31. The Tribunal acknowledges that, as at the date of this decision, this advice is no longer part of current policy used by the Department to assess cl 187.234(c).[2]

    [2] [Sch2Visa186 & 187] Permanent Employer Sponsored Entry – ENS and RSMS Visa Applications – Subclasses 186 / 187 (immi.gov.au)

32. The plain wording of cl 187.234(c) of the Regulations applicable in this case requires that, in circumstances where an applicant has obtained the qualification in Australia, they must also have had the qualification listed in ANZSCO as necessary to perform the tasks of that occupation. In the opinion of the Tribunal, PAM 3 as at the time of the delegate’s decision, enabled a decision maker to go behind the qualification itself and question the basis on which it had been obtained. Consistent with the decision of the Tribunal (differently constituted) in Gautam [2022] AATA 2195, the Tribunal is of the view that the policy relied upon by the delegate goes beyond the requirements of the legislation.  In the view of the Tribunal, this is supported by the fact that the current version of policy in relation to

    
    

    cl 187.234(c) of Schedule 2 to the Regulations no longer contains the text italicised above at para [30] prohibiting consideration of qualifications obtained solely or partly through RPL.

33. Having regard to available evidence, the Tribunal finds that Mr Rashed obtained his Certificate IV in Commercial Cookery in Australia and so he meets cl 187.234(c)(i) of Schedule 2 to the Regulations. Furthermore, a Certificate IV in Commercial Cookery is listed in ANZSCO as one of the qualifications required for the occupation of Cook in Australia and, accordingly, the Tribunal finds that Mr Rashed meets cl 187.234(c)(ii). In summary, the Tribunal is satisfied that Mr Rashed held the necessary qualification obtained in Australia as at the time of lodgement of his visa application and, as such, the requirements in cl 187.234(c) have been met. Consequently, Mr Rashed meets cl 187.234 of Schedule 2 to the Regulations.

34. Given this finding, the appropriate course is to remit the visa application to the Minister to enable consideration of the remaining criteria for the visa.

35. The second named applicant, Mrs Nasrin Sultana, applied for her Subclass 187 visa on the basis of being a member of the family unit of a person who holds a Subclass 187 visa.  As such, her application will be determined by reference to the outcome of Mr Rashed’s application on remittal to the Department for reconsideration. 

    decision

36. The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, 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.

    Katie Malyon

    
    Member

    ATTACHEMNT – Extract from the Migration Regulations 1994

    Schedule 2

    Subclass 187 - Regional Sponsored Migration Scheme

    ..

    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)  all of the following requirements were met:

    (i)  the applicant's occupation was not specified by the Minister in an instrument in writing for subparagraph (b)(i), or the applicant obtained the necessary qualification in Australia; and

    (ii)  the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

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