Wong (Migration)

[2020] AATA 1693

Wong (Migration) [2020] AATA 1693 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yung Jet Wong

CASE NUMBER:  1832710

HOME AFFAIRS REFERENCE(S):          BCC2018/374421

MEMBER:Stavros Georgiadis

DATE:12 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 12 May 2020 at 5:56pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) –­ Direct Entry stream – Financial Investment Adviser – provision of nominated employment – not licenced or registered – qualification not recognised by relevant professional body – more stringent requirements for occupation introduced – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.212

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 23 January 2018. 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 the Direct Entry stream, to work in the nominated position of Financial Investment Adviser ANZSCO 222311.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.212 of Schedule 2 to the Regulations as the applicant was not performing the full range of tasks of the occupation and was therefore, not working in the position of Financial Investment Adviser.

6. The applicant appeared before the Tribunal on 12 May 2020 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

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 criterion in cl.187.212 for the grant of a Subclass 187 visa.

   Employment will be provided

10. The criteria for a Subclass 187 visa are not divided between time of application and time of decision criteria. However, some criteria require the Tribunal to be satisfied of the existence of certain matters as at the time of the visa application (for example, the requirement for some applicants to hold or be eligible to hold a licence, registration or membership of a professional body). Unless otherwise specified, all criteria must be satisfied at the time a decision is made on the application.[1]

    [1] Note to div 187.2.

11. All primary applicants must meet the common criteria and the criteria in one of two alternative streams: the Temporary Residence Transition stream or the Direct Entry stream.[2]  Relevantly here, the applicant seeks to satisfy the criteria in the Direct Entry stream.

    [2] On introduction, the visa contained a third ‘Agreement stream’, however this was not used and was ultimately removed from the criteria for this visa by F2018L00262.

12. Clause 187.212 requires that the nominated position will provide the applicant with the employment referred to in the related nomination application.  The employment referred to is that of a Financial Investment Adviser (ANZSCO 222311).  From the description in ANZSCO, this Skill Level: 1 occupation undertakes the following:

    Develops and implements financial plans for individuals or organisations, and advises on investment strategies and their taxation implications, securities, insurance, pension plans and real estate. Registration or licensing may be required.

13. The applicant’s submissions and evidence at hearing is that he has been performing the role of a “Junior Financial Adviser” with his current employer, Camerons, but is not yet fully qualified to undertake the occupation of Financial Investment Adviser and therefore, can only provide limited financial advice to clients. 

14. The ANZSCO classification provides that most occupations in the 2223-unit group have a level of skill commensurate with a 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 (ANZSCO Skill Level 1).

15. The Tribunal has had regard to all the applicant’s written submissions including those provided prior to the hearing and following the hearing on the same afternoon of the hearing.  The Tribunal accepts the applicant’s written submissions that registration or licensing may be required for this occupation noting the submission that this changed in ANZSCO in November 2019.

16. At the hearing the applicant’s oral evidence is that he was not licenced or registered as a Financial Investment Adviser at the time of application as this was not a requirement when he lodged his visa application on 23 January 2018.  He confirmed when asked, that as at the date of hearing he remains not licenced or registered as a Financial Investment Adviser. The evidence is that he currently provides assistance to existing Licensed Financial Planners with his current employer.

17. When asked about the qualifications required to be able to take up the occupation of Financial Investment Adviser, the applicant referred to the requirements of the Financial Adviser Standards and Ethics Authority (FASEA).  The applicant explained that enquiries with FASEA established that his Bachelor of Economics and Finance degree (from RMIT) would not be “specific enough” to be accepted by FASEA for the occupation of a Financial Investment Adviser.  When asked to elaborate on this or about any further qualifications or training required, the applicant explained that a Bachelor of Financial Planning would be required or other criteria beyond that which he had already completed. The Tribunal noted than new entrants to this occupation would be required to undertake a professional year and also an examination which the applicant confirmed he has not undertaken. The applicant explained to the Tribunal that although these aspects were not required at the time of application, the requirements for a Financial Investment Adviser have now become more stringent and other requirements are in place for that occupation.

18. The Tribunal places weight on the applicant’s oral evidence discussed and accepts that at the time of decision the applicant does not meet the requirements to undertake the occupation of Financial Investment Adviser as his bachelor degree is not recognised by FASEA, the professional body relevant to the occupation of Financial Investment Adviser, and other requirements discussed.  It follows that in the absence of requisite criteria for the occupation of Financial Investment Adviser, the applicant would not be able to take up that employed role.

19. Accordingly, the Tribunal is not satisfied that the position to which the application relates will provide the applicant with the employment referred to in the related nomination application.

20. Therefore, cl.187.212 is not met.

21. 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

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

    Stavros Georgiadis

    
    

    Member