1508174 (Migration)

[2015] AATA 3500

1508174 (Migration) [2015] AATA 3500 (15 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Tariro Jane BETERA
Mr Takudzwa MAHLUNGE

CASE NUMBER:  1508174

DIBP REFERENCE(S):  BCC2014/2125723

MEMBER:Lisa Lo Piccolo

DATE:15 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 15 October 2015 at 12:08pm

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 9 June 2015 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas 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 visas because the first named applicant (the applicant) did not satisfy cl.485.223 of Schedule 2 to the Regulations because the applicant did not demonstrate that she had applied for a skills assessment when the visa application was lodged. A copy of the delegate’s decision was provided to the Tribunal by the first named applicant.

4. The first named applicant appeared before the Tribunal on 13 October 2015 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

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 Registered nurse nec which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is the Australian Nursing and Midwifery Accreditation Council.

4. In the original visa application form, lodged online on 27 August 2014, the applicant answered “no” 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.

5. At the hearing the applicant told the Tribunal that she had not applied for the skills assessment prior to lodging her application.  She explained that she was required to demonstrate competent English to the relevant assessing authority and she had been unable to at that time.  The evidence before the Tribunal is that the applicant applied for a skills assessment on 18 September 2015.  The assessing authority has advised that it will take 12 weeks to process.(T.f.19).  This evidence was also provided to the Tribunal prior to the hearing in support of an application to postpone the hearing to await the outcome of the assessment.[1]   

   [1] The Tribunal notes that the postponement request was refused on the basis that cl.485.223 requires that, the application when made, is accompanied by evidence that the applicant had applied for a skills assessment..

6. As discussed with the applicant at the hearing, 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.

7. 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.

8. As the second named applicant, the second named applicant applied for the visa on the basis that she could satisfy the secondary criteria for the grant of the visa. 
   Cl. 485.311 requires that she is a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa.  As the first named applicant has not met the requirements for the grant of a Subclass 485 visa, the second named applicant cannot meet cl.485.311 and, therefore, the requirements for a Subclass 485 visa.decision

9. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Lisa Lo Piccolo
Member