Seranno (Migration)

[2020] AATA 1184

Seranno (Migration) [2020] AATA 1184 (17 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Miguel Angel Seranno
Mrs Liseth Yereli Laguado Iturrate

CASE NUMBER:  1901575

HOME AFFAIRS REFERENCE(S):          BCC2017/2315519

MEMBER:Stavros Georgiadis

DATE:17 April 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 visa 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 17 April 2020 at 8:11pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – specified work experience and skill level – relevant qualifications – Bachelor of Psychology – Diploma of Consumer Psychology – dealing with customer complaints – managing personnel – 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 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 29 June 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 the Direct Entry stream, to work in the nominated position of Retail Manager (General) ANZSCO 142111.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.234 of Schedule 2 to the Regulations as the delegate considered the applicant did not have the relevant qualifications or sufficient work experience listed in ANZSCO as being necessary to perform the tasks of the nominated occupation.

6. The applicants appeared before the Tribunal by teleconference on 17 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr James Tilley who is Regional Manager with the applicant’s employer. The Tribunal was assisted by an interpreter of the Spanish and English languages.

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 their review by a 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 primary applicant satisfies the criteria in cl.187.234 for the grant of the Subclass 187 visas.

    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 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.

14. The application for the Subclass 187 visas in this case is a joint application with the primary applicant’s spouse, lodged on 29 June 2017 under the Direct Entry stream.  The criteria set out in cl.187.234 must be satisfied by the primary applicant at the time of application. 

15. 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.

16. 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.

17. At the hearing, the applicant said he is presently remunerated in the order of $50,000 per year for his work as Retail Manager with the business trading as On-The-Run operated by the Peregrine Corporation.  This is consistent (noting the passage of time) with the applicant’s employment contract referred to in the delegate decision that his earnings will be $48,557.60.  Accordingly, the applicant is not exempt from the skills requirement as a person under Class 1, as the level of remuneration is lower than the current Australian Tax Office top individual income tax rate which is significantly higher.

    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.

18. The Tribunal finds that the applicant is not a person under Class 2 above as he does not hold a Subclass 444 or 461 visa.

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

20. At the hearing, the applicant confirmed that the position identified in the application is for the occupation of Retail Manager.  The role of Retail Manager (General) (ANZSCO 142111) is not an occupation specified by the Minister in the instrument IMMI12/096 of the Register of Instruments in relation to cl.187.234(b). Therefore, cl.187.234(b) does not apply.  As neither paragraph subclauses 187.234(a) nor (b) apply, the applicant must establish that he 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 he has been working full time with his current employer for several years having commenced in May 2016 as a Console Operator On-The-Run and then promoted to the role of Convenience Site (Retail) Manager as a number of sites in metropolitan Adelaide. The requisite skill level for Retail Manager (General) is ANSZCO 142111 Skill Level 2.

22. The ANZSCO database states that most occupations in this unit group (1421) have a level of skill commensurate with an Australian Qualifications Framework (AQF) associate degree, advanced diploma or diploma. At least three 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. At the time of application, the applicant did not have at least three years of relevant experience to substitute for any formal qualification.  Accordingly, the applicant’s qualifications must satisfy the requirements of cl.187.234(c) as being necessary to perform the tasks of the occupation.

23. As before, the role of Retail Manager (General) is an ANZSCO Skill Level 2 occupation, and the tasks of this occupation include the following:

    ● determining product mix, stock levels and service standards
    ● formulating and implementing purchasing and marketing policies, and setting prices
    ● promoting and advertising the establishment's goods and services
    ● selling goods and services to customers and advising them on product use
    ● maintaining records of stock levels and financial transactions
    ● undertaking budgeting for the establishment
    ● controlling selection, training and supervision of staff
    ● ensuring compliance with occupational health and safety regulations

24. From a description provided at the hearing of the duties undertaken by the applicant in this role, the Tribunal is satisfied that the duties of the nominated position correspond to those of the occupation of Retail Manager.

25. The relevant qualifications obtained by the applicant to the requisite level of AQF prescribed in ANZSCO (associate degree, advanced diploma or diploma) include the following formal qualifications. A certified translated transcript of the applicant’s Diploma of Consumer Psychology issued in Venezuela dated 22 October 2012 was provided to the Tribunal together with evidence of the Bachelor of Psychology:

    ·Bachelor of Psychology (4-year degree course)

    ·Diploma of Consumer Psychology (concurrently with B. Psych, 18-month course)

26. The Tribunal notes the delegate’s comments that “these two qualifications are not relevant to the occupation.”  However, the Tribunal is of a different view on this point. At the hearing the Tribunal carefully questioned the applicant about how his tertiary qualifications are necessary for him to perform the tasks of the occupation and their relevance to the role of Retail Manager having regard to the specific tasks undertaken for that occupation.  Examples given to enable undertaking tasks of the role included: assisting in dealing with customer complaints, managing personnel such as staff performance, advising on sales / promotions / marketing, undertaking training and development, OHS & Welfare, budgeting and the general running of the site store.  The applicant explained that he had completed specialised unit subjects as part of his formal Psychology studies including unit modules in areas relating to consumer behaviour / psychology, marketing and sales, human behaviour in organisations, employment, organisational development and human resource management, and other relevant areas.

27. The Tribunal also had the benefit of hearing from On-The-Run Regional Manager, Mr James Tilley.  He gave oral evidence that from the employer’s perspective, such formal training and qualifications are very attractive when seen on a curriculum vitae and highly sought after for the role of Retail Manager. Mr Tilley’s evidence is consistent with the applicant’s submissions that these qualifications are both relevant to the applicant’s understanding and knowledge of organisations, retail businesses and the applicant’s ability to deal with customers and personnel.  From this, the Tribunal is satisfied that the applicant’s qualifications are necessary to perform the tasks of the nominated occupation; and have enabled the applicant to competently and efficiently perform the tasks required of Retail Manager with his employer.  He has since undertaken in-house specialised training in Management (Manager-in-Training) provided by his employer spanning over a duration of 9 months and completed in February 2017.

28. From the available evidence before it discussed, the Tribunal is satisfied that the applicant had the qualifications in ANZSCO necessary to perform the tasks of the occupation at the time of lodging the application for the visas.  Accordingly, the applicant meets cl.187.234(c).

29. The Tribunal further notes that at the time of application the applicant had not been employed in the nominated occupation for at least 3 years on a full-time basis, at the skill level required for the occupation.  However, this criterion is not required in circumstances (as here) for applications lodged before 18 March 2018.

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 visas in respect of all applicants including the second named visa applicant (claimed as the applicant’s spouse) as member of the same family unit as the primary applicant: cl.187.311.

    DECISION

32. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration in respect of all visa 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