Sangeeleemootoo (Migration)

[2020] AATA 1691

Sangeeleemootoo (Migration) [2020] AATA 1691 (13 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Marie Vilasha Christelle Sangeeleemootoo

CASE NUMBER:  1824814

HOME AFFAIRS REFERENCE(S):          BCC2017/1356178

MEMBER:Stavros Georgiadis

DATE:13 May 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 13 May 2020 at 1:26pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –­ Direct Entry stream – Child Care Centre Manager – skills and qualification – bachelor degree or higher qualification  – alternatively at least five years of relevant work experience – 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 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 12 April 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 Direct Entry stream, to work in the nominated position of Child Care Centre Manager (ANZSCO 134111).

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 at the time of application, did not come within an exempt class of persons or occupation and did not have the requisite Skill Level 1 qualification commensurate with a bachelor degree or higher, or at least five years of relevant experience that may substitute for the formal qualification.

6. The applicant appeared before the Tribunal on 13 May 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant satisfies the criteria in cl.187.234 for the grant of the Subclass 187 visa.

   Skills and qualifications

10. 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.

11. 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.

12. 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.  The applicant has previously held a Subclass 485 visa granted on 8 March 2013 to 8 September 2014.

13. The application for the Subclass 187 visas was lodged on 12 April 2017 under the Direct Entry stream.  The criteria set out in cl.187.234 must be satisfied by the applicant at the time of application. 

14. 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.

15. 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.

16. At the hearing, the applicant said that her earnings for the nominated occupation at the time of application were, and would continue to be, $70,839 per year.  This is consistent with that referred to in the delegate decision.  Accordingly, the applicant is not exempt from the skills requirement as a person under Class 1, as the accepted level of remuneration is lower than the current 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.

17. The applicant responded when asked that she had not held any of the above visa classes.  This is confirmed in the applicant’s Movement Details and therefore, the Tribunal accepts the applicant’s oral evidence in this regard. 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.

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

19. At the hearing, the applicant confirmed that the position identified in the application is for the occupation of Child Care Centre Manager (ANZSCO 134111). This is not an occupation specified by the Minister in an instrument in writing [IMMI12/096 of the Register of Instruments] for the purposes of cl.187.234(b)(i). Therefore, cl.187.234(b) does not apply.  

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

21. At the hearing, the applicant confirmed that she has been working in the past as a Child Care Centre Manager both in Western Australia and in Victoria.  The requisite skill level for Child Care Centre Manager listed in ANZSCO 134111 is Skill Level 1.  The ANZSCO database states that in Australia most occupations in this unit group (1341) have a level of skill commensurate with an Australian Qualifications Framework (AQF) of 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.

22. The applicant’s accepted oral evidence is that at the time of application, she did not have a bachelor degree.  Her evidence is that the highest-level qualification attained was that of Diploma of Children’s Services Early Childhood Education and Care (from TAFE Polytechnic in Western Australia).  As this is less than the level of bachelor degree, the Tribunal therefore, considered whether the applicant had for the purposes of cl.187.234(c), at least five years of relevant experience to substitute for the formal qualification at the time she lodged her visa application on 12 April 2017.

23. At the hearing the Tribunal carefully examined the applicant’s relevant work history and experience for the role of Child Care Centre Manager.  The ANZSCO 134111 classification sets out the role as one that ‘plans, organises, directs, controls and coordinates the activities of a childcare centre or service including physical and human resources’ which the Tribunal has had regard to. The Tribunal notes the delegate’s conclusion that the applicant had attained just two years and three months or such work experience at the time of visa lodgement. The Tribunal independently assessed this and places weight on the applicant’s own oral evidence discussed below.

24. The applicant told the Tribunal that in respect of her work history, she considers she has 4 years of relevant work experience for the nominated occupation of Child Care Centre Manager.  Her accepted oral evidence given to the Tribunal is that this comprised of the following periods of work in relevant Management roles in various Child Care Centres in Australia:

    ·October 2012 to October 2014 - Second in Charge of a Child Care Centre

    ·January 2015 to April 2016 - Manager of a Child Care Centre

    ·April 2016 to mid-March 2017 - Manager of a Child Care Centre

25. The applicant said she also undertook other work as an ‘Education Leader’ from October 2014 to January 2015 but conceded that this is not to be counted as relevant experience for the role of the nominated occupation.  With regard to the tasks of planning, organising, directing, controlling and coordinate the activities of childcare centres, the Tribunal accepts the above oral evidence from the applicant and finds that her relevant experience for the nominated occupation of Child Care Centre Manager at the time of lodging her visa application was less than 5 years in aggregate.

26. Accordingly, the applicant’s qualifications do not satisfy the requirements of cl.187.234(c) as being necessary to perform the tasks of the nominated occupation, nor does she have sufficient relevant experience in the alternative, that may substitute for the formal qualification set out in ANZSCO 134111 for Child Care Centre Manager.

27. Therefore, cl.187.234 is not met.

28. 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.

    DECISION

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

    Stavros Georgiadis

    
    

    Member