1506186 (Migration)

[2015] AATA 3642

1506186 (Migration) [2015] AATA 3642 (12 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thu Thao Nguyen

CASE NUMBER:  1506186

DIBP REFERENCE(S):  BCC2015/448567

MEMBER:Bruce MacCarthy

DATE:12 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 12 November 2015 at 10:26am

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 24 April 2015 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 10 February 2015. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, but that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa because, among other things, the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations she had not provided evidence that her skills for her nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation.

4. The applicant appeared before the Tribunal, in a telephone conference, on 5 November 2015 to give evidence and present arguments.  The Tribunal also received oral evidence from her pastor, though that evidence was not related to the issue of her skills for her nominated skilled occupation. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.223 and 485.224 of Schedule 2 to the Regulations. These criteria are concerned with the applicant’s skills in relation to their nominated skilled occupation. The issue in the present case is whether the applicant meets those requirements.

   Had the applicant applied for a relevant skills assessment?

7. Clause 485.223 requires that when the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.

8. ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.1.03).  An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation.  ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations (r.1.03).  The relevant instrument is Legislative Instrument IMMI 15/091.

9. On the evidence before the Tribunal, the applicant nominated the occupation of Valuer which is a specified skilled occupation.  For that occupation (which has the ANZSCO Code 224512), the relevant assessing authority specified is VETASSESS. 

10. In her application for the visa, the applicant said that she had applied to the “ACT Legal Practitioners Admission Board” for an assessment of her skills and said that she had a skills assessment dated 19 January 2015.  She gave the reference number “GRD1005/3082468.”  As discussed with her at the hearing, the ACT Legal Practitioners Admission Board is not a relevant assessing authority specified in IMMI 15/091for the occupation of Valuer.  The applicant said that she had applied to VETASSESS and had received an appropriate skills assessment.  She said she would submit the relevant documents to the Tribunal by Tuesday 10 November 2015, and dis so on Friday 6 November 2015. 

11. Among other documents, she provided a copy of an assessment by VETASSESS dated 23 April 2015.  This document did not establish precisely when the applicant had applied to VETASSESS.  However, given that the reference number (15NG214948(bs)) on the assessment is not the same as the reference number given by the applicant in her application, and the assessing authority mentioned in the application is not a relevant assessing authority for the applicant’s nominated skilled occupation, the Tribunal is satisfied that there was no evidence in the application, or accompanying that application, to indicate that she had applied to the relevant assessing authority prior to the date on which she applied for the visa. 

12. As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant does not satisfy the requirements of cl.485.223.  In any event, for reasons outlined below, the applicant does not satisfy the requirements of cl.485.224.

    Has the applicant been assessed as suitable for the nominated occupation?

13. Clause 485.224(1) requires that the applicant’s skills for the nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.  In addition, if the assessment is expressed to be valid for a particular period, that period must not have ended: cl.485.224(1A).  There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.

14. As noted above, on 6 November 2015, the applicant provided, among other documents, a copy of a skills assessment dated 23 April 2015.  That document stated that the Qualifications Assessment Outcome was “Negative.”  In other words, her skills were assessed by VETASSESS as not suitable for the nominated skilled occupation of Valuer.  This was because her field of study for the degree course upon which she based her application was considered not highly relevant to her nominated skilled occupation.

15. Given the evidence before it, the Tribunal finds that the applicant’s skills have not been assessed, during the last 3 years, by a relevant assessing authority as suitable for her nominated skilled occupation. Therefore, the requirements of cl.485.224 of Schedule 2 to the Regulations are not met.

16. On the basis of the above findings, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa.  As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Bruce MacCarthy
    

    Member