1503650 (Migration)

[2016] AATA 3600

1503650 (Migration) [2016] AATA 3600 (23 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BENEDICTO ALVARES DAGASDAS

CASE NUMBER:  1503650

DIBP REFERENCE(S):  BCC2014/2216122

MEMBER:Don Lucas

DATE:23 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 23 March 2016 at 4:18pm

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 on 2 March 2015 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 4 September 2014. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 Accountant (General). 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.186.234(2)(a) of Schedule 2 to the Regulations because the applicant had not, at the time of application, presented evidence that an assessing authority for the occupation of Accountant (General) had assessed the applicant’s skills as suitable for the occupation.

6. The applicant appeared before the Tribunal on 22 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Maria Dadis, the applicant’s sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

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 cl.186.234.

   Skills assessment and prior employment

10. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

11. For this criterion, the relevant class of exempt persons has been specified in IMMI 12/060.

12. For the skills assessment, the relevant assessing authorities for each occupation have been specified in IMMI 15/091. For visa applications made on or after 28 October 2013, this 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.

13. In addition, if not an exempt person, the applicant must have been employed in the occupation for three years. Where the visa application was made on or after 1 July 2013, this employment must have been on a full time basis and at the level of skill required for the occupation.

14. The applicant is not in a class of exempt persons listed in the relevant Gazette. The applicant is accordingly required at the time of visa application to have been assessed by an assessing authority specified for the purposes of cl.186,234(2)(a) in his nominated occupation of Accountant (General) as having skills suitable for this nominated occupation.

15. The relevant Gazette lists three different assessing authorities for the occupation of accountant (General), being CPA Australia, the Institute of Chartered Accountants Australia (CAA) or the Institute of Public Accountants (IPA).

16. The applicant provided the Department with a confirmation of membership document from CPA Australia. As correctly determined by the delegate, mere confirmation of membership of this professional body is not a skills assessment for the purposes of cl.186.234.

17. The applicant provided the Tribunal with a letter dated 27 August 2012 being qualifications assessments provided by IPA. The letter states that it constitutes a favourable assessment for the purposes of a Graduate (Temporary) Visa (Subclass 485) application. The letter states that in order to be eligible to apply for general skilled migration, and before receiving the full skills assessment, the applicant was required to demonstrate to IPA either the completion of an IELTS academic test with an overall band score of seven in the four components, or evidence of completion of the Skilled Migration Internship Program – Accounting.

18. At the hearing, the applicant confirmed that he had never been able to achieve an IELTS score required by IPA and had never therefore received the full skills assessment, either by the time he made his visa application on 4 September 2014 or at any time afterwards.

19. Clause 186.234(2)(aa) specifically states that the skills assessment required for this subclause cannot be one for a subclass 485 (temporary graduate) visa.

20. The Tribunal accordingly finds that the applicant fails to meet the mandatory time of application requirement to possess the requisite skills assessment contained within cl.186,234.

21. Therefore, cl.186.234 is not met.

    Public interest guidelines

22. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

23. The applicant raised a number of matters with the Tribunal in support of a recommendation being made concerning public interest.

24. Both the applicant and his sister gave evidence that their parents are both suffering serious chronic health conditions and are of advanced years and rely heavily upon the applicant for material daily support. Both elderly parents are presently residing with the applicant. The applicant provided medical documentation concerning the health conditions suffered by each of his parents.

25. The applicant further stated that the stress associated with his parents’ chronic health conditions had affected his capacity to successfully achieve the required score in the IELTS examination that had been critical to him obtaining the necessary skills assessment.

26. The applicant also stated, as did his sister, that the applicant had been misadvised by the representative concerning the skills assessment criteria, and the applicant had been led to understand that the provisional subclass 485 skills assessment he had obtained was sufficient.

27. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter.

28. In this regard, the Tribunal notes a number of matters.

29. The Tribunal accepts on the basis of the medical evidence that both of the applicant’s parents, in particular the applicant’s mother, are suffering from serious health conditions requiring some level of daily support. The Tribunal accepts that the applicant may be providing a certain amount of support, but it also notes that the applicant is presently working full-time in his occupation of Accountant.

30. Furthermore, the applicant has three sisters also residing in Australia. Although each of the sisters has family commitments, it would seem to the Tribunal that some level of support could be provided by one or more of these sisters to the parents, particularly if they were to share residence.

31. Furthermore, it may be open to the applicant, upon advice, to determine whether he may be eligible for an alternative migration visa more appropriately designed for the circumstances, such as for example the Carer visa category.

32. Whilst the Tribunal is not prepared to make a recommendation concerning public interest intervention, the Tribunal notes that the applicant can still make a request directly to the Minister.

    CONCLUSIONS

33. The applicant has only sought to satisfy the criteria for a Subclass 186 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

34. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Don Lucas
    Member