1507971 (Migration)

[2015] AATA 3645

1507971 (Migration) [2015] AATA 3645 (12 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss MADUSHIKA SAYURI THENUWARA

CASE NUMBER:  1507971

DIBP REFERENCE(S):  BCC2014/2124136

MEMBER:Lisa Lo Piccolo

DATE:12 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 12 November 2015 at 12:19pm

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 11 June 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 27 August 2014. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused the visa because the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because there was no evidence to demonstrate that the skills of the applicant for the applicant’s nominated skilled occupation applicant had been assessed by a relevant assessing authority as suitable for that occupation. The applicant provided the Tribunal with a copy of the delegate’s decision.

4. The applicant appeared before the Tribunal on 11 November 2015 by telephone from Sri Lanka to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing via telephone in Sri Lanka.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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?

1. 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’.

2. ‘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.

3. On the evidence before the Tribunal, the applicant nominated the occupation of Occupational Health and Safety Adviser which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Vocational Education Training and Assessment Services (VETASSESS).

4. In the original visa application form, lodged online on 27 August 2014 at 5.37pm, the applicant answered “yes” to the question about whether or not she had applied to a relevant assessing authority for an assessment of her skills for her nominated skilled occupation.  She also gave a date of “26 Aug 2014” of a skills assessment through TETASSESS and provided the reference/receipt number “14^TH200344”.

5. A copy of the skills assessment payment receipt dated 26 August 2014 was submitted to the Department with the application on 27 August 2014 (D.f.2).  The Tribunal notes that it bears a Receipt Number RV111477 and an internet reference of 11894126.  The receipt is in the name of the applicant and is for a subclass 485 assessment of qualifications. The Tribunal accepts that the reference included in the application was included erroneously by the migration agent and that the applicant did apply for their skills to be assessed on 26 August 2014.    

6. As the visa application, when made, was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant satisfies the requirements of cl.485.223.

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

1. Clause 485.224(1) requires that the applicant’s skills for the nominated skilled occupation have been assessed 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).

2. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.

3. There are no documents before the Tribunal which demonstrate that the applicant’s skills for the nominated skilled occupation have been assessed by a relevant assessing authority as suitable for that occupation.  In her evidence before the Tribunal, the applicant conceded that she had not been assessed by a relevant assessing authority as suitable for her nominated skilled occupation at the time of the application.  The applicant told the Tribunal she is aware that she does not meet the requirements and proceeded with the review because she urged the Tribunal to consider a referral to the Minister’s intervention under s.351 of the Act.  This was confirmed in the representative’s submission dated 11 November 2015.

4. Therefore, based on the evidence before the Tribunal, the requirements of cl.485.224 are not met.

5. 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.

MINISTERIAL INTERVENTION

1. In a submission dated 11 November 2015, the applicant’s representative requested the Tribunal recommend to the Minister to exercise his discretion under s.351 of the Act on public interest grounds.  The representative relied upon the following circumstances:

   ·      The applicant has lived in Australia since 2009.

   ·      She has undertaken two degrees in Australia.  She only wishes to be given a graduate skilled visa for 18 months and would greatly appreciate the opportunity to work in Australia as she has been a genuine student studying in Australia between 2009-2014.

   ·      She had wanted to apply for a subclass 485 visa before 31 December 2012 prior to a regulatory amendment but was unable to do so because the university only released her results on 2 January 2013.

   ·      She has been significantly disadvantaged by arriving in Australia earlier than November 2011 where she could have been granted a subclass 485 visa without a skills assessment.  

2. The Tribunal notes that these are not matters that the Tribunal can take into account in making a decision.  As the applicant does not satisfy an essential criterion for the visa at the time of the visa application, the Tribunal has no choice but to affirm the decision under review.  Only the Minister has the discretion to intervene and take these circumstances into account.

3. Having regard to the circumstances of the applicant as outlined above and having considered the Ministerial guidelines relating to the Minister's discretionary power under section 351 set out in PAM3 "Minister's guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)", the Tribunal does not consider that this case should be referred to the Department to be brought to the Minister's attention. 

DECISION

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

Lisa Lo Piccolo
Member