Reid (Migration)

[2020] AATA 3032

Reid (Migration) [2020] AATA 3032 (3 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Paul Daniel Reid
Mrs Christina Reid

CASE NUMBER:  1806371

HOME AFFAIRS REFERENCE(S):          BCC2017/3395262

MEMBER:Stavros Georgiadis

DATE:3 May 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 03 May 2020 at 4:37pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –  Direct Entry stream – Bricklayer – qualifications, skills and experience – not an exempt person – evidence of two years’ work in occupation after obtaining relevant qualification – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

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 (the Act).

2. The applicants applied for the visas on 18 September 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Bricklayer (ANZSCO 331111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations as the delegate considered the applicant was not in any exempt class of persons and otherwise did not have the qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation.

6. The applicant appeared before the Tribunal on 1 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, Mr Matt Bell from Quattro Property Services Pty Ltd.

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 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. 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 for the purposes of cl.187.234 of the Regulations, the applicant is in any specified class of exempt persons or otherwise has the qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation.

    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 (not 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 cl.187.234 criteria, the relevant classes of exempt persons have been specified in the legislative instrument IMMI 17/058 (exempt from skill criteria), and the occupations and relevant assessing authorities have been specified in IMMI 12/096 (specification of occupations - 187). 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 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. Clause 187.234 of Schedule 2 of the Regulations must be satisfied at the time of application and 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.

    Classes of Exempt Persons or Occupations

15. The nominated position is Bricklayer (ANZSCO 331111). The applicant’s evidence is that at the time of application, he was being paid $73,112 per year (plus superannuation).  Clause 187.234(a) provides an exemption from the skills requirement on the basis that the applicant is a person in a class of persons specified by the Minister in the legislative instrument IMMI 17/058 - relevantly, a Subclass 444 (Special Category) visa or a Subclass 461 (New Zealand Citizen Family Relationship) Temporary visa. 

16. There is no evidence that the applicant had held, at the time of application, a Subclass 444 (Special Category) visa or a Subclass 461 (New Zealand Citizen Family Relationship) Temporary visa. The Tribunal finds the applicant was not a person in a class of persons specified by the Minister in the legislative instrument for cl.187.234(a). Therefore, the applicant does not meet cl.187.234(a).

17. The Tribunal also considered whether the applicant’s occupation is specified by the Minister in legislative instrument for the purposes of cl.187.234(b)(i). While Bricklayer is an occupation specified by the Minister in relation to this clause, cl.187.234(b)(ii) includes the requirement that an applicant did not obtain the necessary qualification in Australia. The applicant has provided evidence that the Certificate III qualification for the occupation he relies upon was obtained in Australia at a TAFE institute in Queensland.

18. The Tribunal finds therefore, cl.187.234(b)(ii) does not apply and accordingly, the applicant does not meet cl.187.234(b).

19. Since neither sub-paragraph (a) nor (b) applies, the applicant is required to hold the qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation. This is consistent with the applicant’s submissions made at the hearing.

    Qualifications necessary to perform the tasks of the occupation

20. In Australia, the occupation of Bricklayer (ANZSCO 331111) requires an Australian Qualifications Framework (AQF) Certificate III including at least two years of on-the job training, or an AQF Certificate IV, or at least three years of relevant experience to substitute for the formal qualifications.  The accepted evidence before the Tribunal is that the applicant completed a Certificate III in Bricklaying and Blocklaying on 7 June 2010 at the Sunshine Coast Institute of TAFE in Queensland, Australia. The applicant has not provided any evidence of holding any AQF Certificate IV qualification.  Accordingly, he must demonstrate that he has undertaken either two years of on-the job training in addition to the AQF Certificate III qualification, or at least three years of relevant experience as substitute for the formal qualifications required, in order to meet the ANZSCO requirements.

21. The Tribunal notes the documents referred to in the delegate’s decision previously provided by the applicant as evidence of skills and on-the-job training in addition the AQF Certificate III qualification. The applicant’s oral evidence is that a substantial part of the Certificate III course required on-the-job vocational practical tasks in bricklaying to be undertaken 2 days per week throughout the course. His oral evidence is consistent with his earlier written statement and submissions noted as follows:

    … “I am employed on a permanent basis as Senior Building Supervisor/Bricklayer. Quattro Property services is a building company providing reactive, general and scheduled maintenance and construction projects for various facility management companies. My duties include the following:

    • Liaise with clients.
    • Assist in preparing quotes for jobs.
    • Working out quantities and ordering materials
    • Arrange and oversee subcontractors as required
    • Prepare site for construction and identify issues that need to be addressed
    • Read and interpret plans
    • Make sure construction meets specifications
    • Prepare foundations to plans
    • Prepare mortar and instruct laborers on mixing and loading out.
    • Lay bricks and blocks to plans.
    • Supervise brick/block laying work is finished to a professional standard.
    • Lay damp course.
    • Taking readings
    • Erect limited height scaffold.
    • Ensure OH&S policies are followed.
    • Ensuring site specific rules are followed.
    • Keeping the site clean.’ …

22. The Tribunal notes the distinction made by the delegate between Bricklayer, and the delineation of ‘Senior building Supervisor’ and ‘Senior Building Supervisor/Bricklayer’.  The Tribunal has had the benefit of hearing directly from Mr Matt Bell, the applicant’s current employer with Quattro Property Services Pty Ltd regarding the nature of the duties undertaken by the applicant throughout his employment with that employer and has had regard to this. The accepted oral evidence from Mr Bell is the applicant was engaged as a Bricklayer in a small gang of three persons comprising of the applicant as Bricklayer, an apprentice Bricklayer and a labourer.  Subsequently, since approximately mid-2014, the applicant continued as Bricklayer but also took on additional duties supervising the work of a small gang of three persons comprised of the applicant as supervising Bricklayer, another fully qualified Bricklayer and a labourer who would assist the two Bricklayers.  It is from the addition of these overseeing duties that the employer’s ‘Senior building Supervisor’ and ‘Senior Building Supervisor/Bricklayer’ nomenclature derives. Relevantly, the oral evidence from both the applicant and the employer is that the tasks of Bricklayer continued to be performed by the applicant throughout his employment with Quattro Property Services Pty Ltd to date regardless of the title adopted.

23. The Tribunal accepts the oral evidence that the applicant has been employed full time with Quattro Property Services Pty Ltd since September 2011 in the capacity of Bricklayer and subsequently, as Senior Building Supervisor/Bricklayer to the present time.  As described above, the Tribunal carefully investigated through questions of the applicant and the employer the nature of the tasks continued to be undertaken by the applicant with his work to ensure these are consistent with those set out in ANZSCO. The Tribunal considers the applicant’s role of overseeing the work gang whilst also continuing to undertake the tasks of Bricklayer in that work gang is not adverse to the applicant’s case. The Tribunal is satisfied that throughout his work with Quattro Property Services Pty Ltd over several years, the applicant has undertaken the role of ‘laying bricks, pre-cut stone and other types of building blocks in mortar to construct and repair walls, partitions, arches and other structures’ as set out in the ANZSCO 331111 description for the occupation.

24. The oral evidence from the applicant and his employer satisfies the Tribunal that in aggregate, the applicant has undertaken more than five years of relevant work in the occupation of Bricklayer prior to lodging the visa application.

25. The Tribunal, therefore, finds that the applicant performed the tasks of the occupation of Bricklayer for at least two-years on the job training following obtaining his AQF Certificate III qualification in June 2010. Accordingly, the Tribunal is satisfied 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.  Therefore, cl.187.234 is met.

26. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas in respect of all applicants including the second named applicant, as a claimed member of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria, for the grant of the visa: cl.187.311.

    DECISION

27. 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.

    Stavros Georgiadis

    Member