1508300 (Migration)

[2015] AATA 3789

1508300 (Migration) [2015] AATA 3789 (1 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Marissa-Lynn Chia

CASE NUMBER:  1508300

DIBP REFERENCE(S):  BCC2015/790238

MEMBER:Di Hubble

DATE:1 December 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 01 December 2015 at 2:16pm

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 18 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 11 March 2015. Visa Class VC contains Subclass 485. 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 the Regulations as her skills for the nominated skilled occupation of Psychotherapist (ANZSCO 272314) had been assessed by the relevant assessing authority as not being suitable for that occupation.

4. The applicant sought review of the delegate’s decision on 18 June 2015.  A copy of the delegate’s decision accompanied the review application.

5. On 3 September 2015 the Tribunal wrote to the applicant, pursuant to s.359(2) of the Act, inviting her to provide information in writing by 17 September 2015 demonstrating that she meets cl.485.224(1), the requirements of which were explained. 

6. On 9 September 2015 the Tribunal received a request for an extension of time as the applicant wished to submit an appeal against the negative decision by the relevant assessing authority, Vetassess, in relation to her skills assessment. 

7. On 17 September 2015 the Tribunal wrote to the applicant advising that:

   …On 9 September 2015 we received a request for an extension of time to provide the information.

   We have considered the request carefully and have agreed to grant an extension of time. The information is now to be received by 1 October 2015.

   If we do not receive the information by 1 October 2015, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments…

8. On 30 September 2015 the Tribunal received an email from the applicant seeking a further extension of time as no decision would be made on her Vetassess appeal for approximately 8 weeks. 

9. The Tribunal responded the same day, advising that it considered it was only able to grant 1 extension of time under s.359(2) and failure to provide the requested information by the due date, as extended, automatically results in the loss of the applicant’s right to a hearing.  However, the Tribunal would consider deferring the decision for a limited period of time if the applicant provided evidence that her skills assessment appeal was still pending before Vetassess.  The applicant subsequently provided this evidence.

10. On 30 November 2015 the applicant provided evidence that her Vetassess appeal had been unsuccessful and her skills did not meet the requirements of her nominated occupation.

    Loss of hearing and whether the Tribunal should inquire further

11. The Tribunal notes that:

    • If a person is given a formal written invitation to provide information under s.359(2) and does not do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information:  s.359C(1).
    • In such circumstances, the applicant also loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review:  s.360(3).

12. As the applicant failed to provide within the prescribed period, as extended, the information requested in the Tribunal’s s.359(2) letter, s.359C(1) and s.360(3) apply and she has lost her right to appear before the Tribunal. 

13. Further, as the applicant’s appeal to Vetassess has been unsuccessful, she clearly cannot supply the information sought in the s.359(2) letter.  Accordingly, the Tribunal has determined to make a decision on the review without taking any further action to obtain the information, in accordance with section 359C(1) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which includes cl.485.224 of Schedule 2 to the Regulations.

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

16. 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.

17. As the applicant’s skills have not been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation, she does not satisfy the requirements of cl.485.224(1).  It follows that the applicant does not meet cl.485.224.

18. 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 must be affirmed.

    DECISION

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

    Di Hubble
    Member