REN (Migration)

[2018] AATA 1016

REN (Migration) [2018] AATA 1016 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jiayi REN

CASE NUMBER:  1616161

DIBP REFERENCE(S):  BCC2016/479994

MEMBER:Ian Berry

DATE:16 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 16 March 2018 at 9:25am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry Stream – Legal Researcher – Requirement to have relevant degree or experience – Applicant does not have the relevant degree or experience

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 Immigration 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 to the Department of Immigration for the visa on 1 February 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of a legal researcher. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.187. of Schedule 2 to the Regulations because the applicant was neither a person who came within IMMI 15/083: cl.187.234(a), nor was her occupation within IMMI 12/096: cl. 187/234(b)(i). As neither 187.234(a) nor 187.234(b) applied, the applicant needed to have the skills and experience required by ANZSCO code 271299. The delegate found that the applicant had neither the necessary qualification nor the experience which was five years in that vocation.

6. The applicant appeared before the Tribunal on 11 December 2017 to give evidence and present arguments. The applicant was not represented by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues in the this case are:

   a.Among other 187 criteria clauses, cl. 187.234 sets out criteria which the applicant must satisfy, for her review to succeed.

   b.Cl.187.234(a) states that at the time of application, the applicant was a person who was within a class of persons specified in a legislative instrument. In this case, IMMI 15/083.

   c.If the applicant was not such a person  then she needed to satisfy the requirements in cl. 187.234(b).

   d.If neither 187.234(a) nor 187.234(b) applied, then the applicant must come within cl. 187.234(c).

   Skills and qualifications

9. For this criterion, the relevant classes of exempt persons have been specified in IMMI 15/083, and the occupations and relevant assessing authorities have been specified in IMMI 12/096. 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.

10. The applicant must come within class 2 of IMMI 15/083:187.234(a). So she must hold either a subclass 444 – Special Category visa, or a subclass 461 – New Zealand Citizen Family Relationship (Temporary) visa. The applicant does not hold either of these visas. Notwithstanding, the condition of the holding of either of these visas, requires the visa holder to hold the position, in this case, a legal researcher, for at least two years. The applicant has not been so employed and certainly not in that occupation.

11. The applicant must satisfy all the requirements of cl. 187.234(b). However, the applicant’s qualifications were obtained in an Australian University and therefore cl. 187.234(b)(ii) cannot be satisfied. Notwithstanding, the applicant’s occupation does not come within IMMI 12/096. Therefore, cl 187.234(b) does not assist this applicant.

12. If neither 187.234(a) nor (b) applies, does the applicant have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation of a legal researcher?

13. Cl.187.234(c) refers to the applicant having qualifications listed in ANZSCO as being necessary to perform the tasks of the position of “legal researcher”. The ANZSCO code 271299 lists the qualification at a skill level 1. This skill level is equivalent to a bachelor degree and relevantly a law degree as the alternative to 5 years experience. That experience would be as a legal researcher or a position very similar performing the tasks of a legal researcher..

14. The applicant has a Masters degree of business majoring in the field of marketing from the University of Queensland.  The visa application has defines her work experience as a hotel attendant and this was for some months in 2012/2013.  There is not any other evidence of any experience beyond her employment in a hotel in China.

    15.The Tribunal is not satisfied that to the applicant has the qualification or experience listed in ANZSCO as being necessary to perform the tasks of a legal researcher.

15. Therefore, cl.187.234 is not met.

16. 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, the decision under review must be affirmed.

17. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Ian Berry
    Member