Ahmed (Migration)

[2017] AATA 2062

Ahmed (Migration) [2017] AATA 2062 (17 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mujeeb Ahmed
Mrs Wajida Ahmed Syeda
Master Omar Ahmed
Master Anas Ahmed
Miss Amirah Ahmed

CASE NUMBER:  1615708

DIBP REFERENCE(S):  BCC2015/3728935

MEMBER:Alison Mercer

DATE:17 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 457 visa:

·cl.457.223(4)(da) of Schedule 2 to the Regulations; and

·cl.457.223(4)(e) of Schedule 2 to the Regulations.

Statement made on 17 October 2017 at 1:56pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills assessment – Motor Mechanic (General) – Successful Trades Recognition Australia assessment provided

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 457.223, cl.457.321

CASES

Joshi v MIMIA [2005] FMCA 1116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 7 December 2015.

3. At the time the visa application was lodged, Class UC contained subclass 457. The criteria for a subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the primary applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visas on 13 September 2016 on the basis that cl.457.223(4)(e) was not met because the first named applicant (the applicant) did not provide evidence of successful completion of a Trades Recognition Australia (TRA) subclass 457 skills assessment, and therefore the delegate was not satisfied that the applicant had demonstrated he had the skills necessary to perform the approved nominated occupation in the manner specified by the Minister. The delegate noted that the applicant had provided evidence of holding relevant qualifications for his nominated occupation of Motor Mechanic (Australian and New Zealand Standard Classification of Occupations, or ANZSCO, code 321211) but found that Departmental policy indicated that a formal skills assessment should be requested where (as in this case) those qualifications were obtained by Recognition of Prior Learning (RPL). The delegate concluded that, as the applicant had failed to provide a TRA skills assessment despite being requested to do so, he did not meet cl.457.223(4)(e).

5. The visa applications by the secondary applicants (the applicant’s wife and children) were also refused because they were found not to be members of the family unit of a person who is the holder of a subclass 457 visa, as required by cl.457.321.

6. The Tribunal received a review application from the applicants on 26 September 2016, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr John Kotsifas, as their representative and authorised recipient for correspondence for the purposes of the review.

7. On 2 February 2017, the Tribunal wrote to the applicants via their agent to invite them to a hearing on 3 March 2017.  They were asked to provide evidence of the applicant’s skills assessment at least 7 days before the hearing.

8. On 2 March 2017, the applicants’ agent provided a submission and supporting documents. 

9. The applicants attended the Tribunal hearing on 3 March 2017, as did their agent.  The applicant gave detailed evidence about his work experience and attempts to have his skills assessed and his qualifications, which is summarised below where relevant.

10. Following the hearing, the Tribunal deferred making its decision to enable the applicant to complete another formal qualification through course work, and to undertake a skills assessment with TRA. The Tribunal initially deferred its decision until 20 June 2017, which was extended until 31 July 2017, and then to 2 October 2017.

11. On 28 September 2017, the applicants’ agent provided a certified copy of a skills assessment issued to the applicant on 19 September 2017 by Victoria University (stated to be contracted on behalf of TRA by the Department of Education and Training to conduct skills assessments on behalf of TRA).  The skills assessment indicates that the applicant has been successful in his application to have his skills assessed as suitable for his nominated occupation of Motor Mechanic (General) (ANZSCO code 321211).

12. The Tribunal forwarded this to the relevant section of Victoria University for verification on 2 October 2017. On 3 October 2017, the Tribunal received an email from Victoria University advising that its request had been forwarded to TRA, who conducted verification of skills assessments issued by, or on behalf of, TRA.

13. On 3 and 16 October 2017, the Tribunal received verification from TRA that the applicant’s skills assessment was genuinely issued and was valid.

14. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(e).

Skills, qualification and employment background of the applicant

1. Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is Motor Mechanic (general) (ANZSCO 321211).

2. In respect of cl.457.223(4)(da), the Departmental policy (as set out in its Procedures Advice Manual, or PAM3) indicates that decision-makers should have regard to ANZSCO in assessing the whether the applicant meets the criteria in cl.457.223(4)(da). The Tribunal took into consideration the policy of the Department set out in PAM 3. The Tribunal observes that whilst it may be guided by policy, it is not bound to follow it.[1] The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations.  However in the interests of consistency in decision-making the Tribunal considered that it should have regard to the policy in this case.

   [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

3. The policy notes, amongst other things, that the qualifications and experience of the applicant should be commensurate with the qualifications and experience specified for the occupation in the relevant ANZSCO Code. It goes on to state that the ANZSCO should be referred to as the principal source of information on the normal tasks or duties and skill requirements for occupations in Australia.  It notes that ANZSCO skill level references represent the entry level skill required for a particular occupation. In all cases, case officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation.

4. In respect of the nominated occupation of motor mechanic, ANZSCO includes the following information:

UNIT GROUP 3212 MOTOR MECHANICS

MOTOR MECHANICS repair, maintain and test motor vehicle and other internal combustion engines and related mechanical components.

Motor Vehicle Parts and Accessories Fitters are excluded from this unit group. Motor Vehicle Parts and Accessories Fitters are included in Unit Group 8994 Motor Vehicle Parts and Accessories Fitters.

Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

In Australia:

AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

In New Zealand:

NZ Register Level 4 qualification (ANZSCO Skill Level 3)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

Registration or licensing may be required.

Tasks Include:

odetecting and diagnosing faults in engines and parts

odismantling and removing engine assemblies, transmissions, steering mechanisms and other components, and checking parts

orepairing and replacing worn and defective parts and reassembling mechanical components, and referring to service manuals as needed

operforming scheduled maintenance services, such as oil changes, lubrications and engine tune-ups, to achieve smoother running of vehicles and ensure compliance with pollution regulations

oreassembling engines and parts after being repaired

otesting and adjusting mechanical parts after being repaired for proper performance

odiagnosing and testing parts with the assistance of computers

omay inspect vehicles and issue roadworthiness certificates or detail work required to achieve roadworthiness

Occupations:

321211 Motor Mechanic (General)
321212 Diesel Motor Mechanic
321213 Motorcycle Mechanic
321214 Small Engine Mechanic

321211 MOTOR MECHANIC (GENERAL)

Maintains, tests and repairs petrol engines and the mechanical parts of lightweight motor vehicles such as transmissions, suspension, steering and brakes. Registration or licensing may be required.

Skill Level: 3

Specialisations:

Automatic Transmission Mechanic
Automotive Airconditioning Mechanic
Brake Mechanic
Ground Support Equipment Fitter (Air Force)
Marine Technician (Navy)
Vehicle Mechanic (Army)

…

1. The Tribunal notes that ANZSCO indicates that a Certificate III (including at 2 years on the job training) or a Certificate IV qualification or at least 3 years of relevant experience may substitute for the formal qualifications.

2. For the purposes of cl.457.223(4)(da), the applicant has provided evidence of the following qualifications and experience:

oCertificate III in Automotive Technology issued on 24 December 2012 by Pacific International College.

oDiploma of Automotive Management issued on 24 December 2014 by Pacific International College.

oCertificate IV in Automotive Mechanical Diagnosis issued on 20 November 2015 by Technical Education Australia

oCertificate II in Automotive Air-Conditioning Technology issued on 8 June 2016 by UTA Institute of Technology

oDepartment of Environment Refrigerant Handling Licence

oletter dated 15 May 2016 from Mr P Souller, Director of Aussie Radiator and Headlight Centre stating that Mr Ahmed worked as a as a paid motor mechanic from January 2012 and he displayed exceptional skills of a professional mechanic. The employer listed the range of duties.

ostatement by the applicant dated 3 March 2017. This statement sets out his work experience in detail. He states that he started working for Aussie Radiator and Headlight Centre in October 2011 as a trainee (unpaid) mechanic and he commenced working as a paid employee on 23 January 2012. He commenced in the role as an assistant mechanic and he worked 20 hours per week as a part time employee.  He listed his duties as a motor mechanic at Aussie Radiator and Headlight Centre. He has also provided pay records for the period of his paid employment. He stated that he had the equivalent of 2.5 years of full time work experience (4 years and 9 months part time).  At the hearing he confirmed he worked in an unpaid capacity from October 2011 to January 2012, and in January 2012 he commenced as a paid motor mechanic. He stated that he worked 20 hours per week from January 2012 to December 2016.

1. The delegate received the information above, except the statement of the applicant and the Certificate II qualification and the licence. There is no finding by the delegate in relation to cl.457.223(4)(da) by the delegate. The Department, however, requested that the applicant provide evidence of a skills assessment under cl.457.223(4)(e). In short, in this case, the delegate determined that the applicant did not meet the requirement in cl.457.223(4)(e).

2. In respect of cl.457.23(4)(e), the policy provides guidance to Department officers about when to request a skills assessment. The relevant policy is attached to this decision. The Tribunal notes the policy states that a person should undergo a skills assessment ‘if TRA supports a 457 Skills Assessment for the nominated occupation and passport country of the visa applicant, then the applicant should be required to provide evidence of having completed this particular type of assessment in order to satisfy 457.223(2)(d) or (4)(e)’. Under the policy, a person may not be required to complete a skills assessment if the applicant meets one of the policy exemptions. On the information available, at the time of hearing, the applicant did not fall within any of the exemptions. At the hearing, the Tribunal raised its concern that the applicant does not fall within the exemptions. In response, the applicant’s representative submitted that cl.457.223(4)(e) is discretionary only and the applicant cannot undertake the specified skills assessment (for reasons set out below).

3. The Tribunal considered the submissions and evidence available for the purposes of assessing whether cl.457.223(4)(e) is met.

4. The Tribunal makes the following findings based on the delegate’s decision record and the written submissions from the applicants and their representatives to the Department and the Tribunal, and the oral evidence and submissions at the hearing:

• on 1 July 2011, the applicant arrived in Australia on a student visa as a dependent on his wife’s student visa;

• on 7 December 2015, the applicants made an application for Temporary Work (Skilled) (subclass 457) visas;

• on 25 February 2016, P & K Souller Investments Pty Ltd (trading as Aussie Radiator and Headlight Centre) were approved as a standard business sponsor. A nomination was subsequently approved in relation to the applicant for the nominated occupation of Motor Mechanic (General) (ANZSCO 321211);

• on 15 March 2016, the Department requested the applicant to provide evidence within 28 days of either –

  ohaving made an application for a TRA subclass 457 skills assessment; or

  osuccessful completion of a TRA subclass 457 skills assessment

• on 16 March 2016, the applicant’s agent requested that the requirement to undertake a skills assessment be waived. In making the submission, the agent noted that the applicant holds a Certificate IV in Automotive Diagnosis (Light Vehicle) (issued 20 November 2015 by Technical Education Australia)) and a Certificate III in Automotive Mechanical Technology (issued 24 December 2014 by Pacific International College). The submission noted that, under policy guidelines, there can be a waiver of a skills assessment if the visa applicant holds a relevant Australian qualification (Certificate IV or above) for the nominated occupation, gained by studying in Australia. The agent also noted that the trade assessment requires the applicant to have at least three year full time employment experience to attempt the trade test and as the applicant is on a student visa he is disadvantaged and cannot have his skills assessed;

• on 13 May 2016, the applicant’s agent sent an email to the Department and noted that no response had been received to the submission made on 15 March 2016;

• on 16 May 2016, the Department requested the applicant to provide evidence of a successful outcome in a TRA subclass 457 skills assessment and gave a further 56 days to respond;

• on 25 May 2016, the applicant’s agent wrote to the Department and provided evidence of the applicant’s skills, including a Certificate III in Automotive Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis. He noted these qualifications were attained through the RPL and not full time study.  The agent also noted that the applicant had been working as a Motor Mechanic with the sponsoring business since January 2012 as confirmed in a reference letter dated 17 May 2016 from Mr P Souller (Director) and the applicant’s PAYG statements for 2013, 2014 and 2015. The agent again requested waiver of the skills assessment;

• on 1 June 2016, the Department responded to the agent and advised that the Department declined to waive the skills assessment. The Department noted the exemptions in the policy did not apply. The Department noted that the applicant obtained his qualifications through RPL and not full time study and noted that further evidence was required of the applicant’s skills if he was demonstrating more than 3 years’ relevant work experience. The Department reiterated that the applicant was been provided 56 days to submit a positive skills assessment;

• on 10 June 2016, the applicant’s agent provided to the Department the payroll journal and bank statements showing the applicant’s salary and a letter explaining evidence of his income. The agent noted that the applicant had worked for more than 4 years in the nominated occupation, working 20 hours per week and fulltime during the school break. The applicant again requested a waiver of the skills assessment;  and

• on 13 September 2016 a department delegate refused the visa applications.

1. On 2 March 2017 the applicant’s representative lodged submissions with the Tribunal, along with various documents. In summary, the agent made the following points:

• the applicant’s employer was an approved sponsor with an approved nomination for the applicant’s position;

• the Tribunal should not place too much weight on the ANZSCO occupational description or skill level in assessing whether the applicant met cl.457.223(4)(da), and no formal skills assessment was required, although one could be requested pursuant to cl.457.223(4)(e);

• in relation to an earlier version of the clause, it was held in the case of Joshi v MIMIA [2005] FMCA 1116 that the sensible and correct approach required the ascertainment of the attributes and skills of an applicant and how those were being applied in the workplace for remuneration;

• the applicant had already provided evidence from his employer that he had been working at Aussie Radiator and Headlight Centre as a Motor Mechanic since January 2012, that he held a Certificate III and Certificate IV in Automotive Technology and a Diploma of Automotive Management, plus a Certificate II in Automotive Air-Conditioning Technology and that he was licensed by the Department of Environment in Automotive Air-Conditioning (Refrigerant Handling);

• the Tribunal should therefore find that the applicant had demonstrated that he possessed the requisite formal qualifications set out in ANZSCO for the nominated occupation, without requiring him to also undertake a formal skills assessment by TRA;

• although the applicant was willing to undertake any form of skills assessment, TRA specified that applicants with Australian Vocational Education and Training (VET) qualifications could only undertake a skills assessment if they had 3 years of full time work experience in the relevant occupation (in contrast to applicants who did not have Australian qualifications, who could simply undertake a skills assessment consisting of a self-evaluation and a formal technical assessment by a Registered Training Organisation (RTO) of their choosing);

• the applicant obtained his Certificate III on 24 December 2014, his Certificate IV on 20 November 2015 and his Diploma on 24 December 2014 via RPL assessment processes conducted by 2 RTOs, Pacific International College and Technical Education Australia, both of which were at the time CRICOS providers and RTOs accredited to award RPL qualifications by the Australian Skills Qualifications Authority (ASQA);

• this should be sufficient for the applicant to be taken to meet cl.457.223(4)(da);

• ANZSCO provided that the skill level for a Motor Mechanic was 3 years of experience, a Certificate III (with 2 years of on the job training) or a Certificate IV;

• the applicant had more than 3 years of work experience as a Motor Mechanic, a relevant Certificate IV qualification and a Certificate III with more than 2 years of on the job training;

• both RTOs that assessed the applicant as having these qualifications based this on his work experience and the practical assessments that he undertook for the RTOs, and these awards had not been cancelled or revoked by ASQA. Therefore, it was not open to the delegate to simply disregard them; and

• while PAM3 suggested that a formal skills assessment should be requested pursuant to cl.457.223(4)(e) where an applicant sought to satisfy cl.457.223(4)(da) with RPL qualifications, Departmental policy was not binding on the Tribunal, and in this case, should not be applied, given that the applicant had demonstrated he held the skills listed in ANZSCO already.

1. The supporting documents included:

• detailed written statement by the applicant about his work history and RPL assessment (undated);

• reference letter dated 17 May 2016 from the applicant’s employer;

• copies of the applicant’s Certificates III and IV in Automotive Technology and Diploma of Automotive Management, and his Certificate II in Automotive Air Conditioning Technology and Refrigerant Handling licence;

• copies of Department of Education and Training guidelines for applicants holding relevant Australian qualifications or current, identified occupational licences, and for those who do not have a relevant Australian qualification;

• PAYG summary statement for the applicant for the financial years 2011/12, 2012/13, 2013/14, 2014/15, and 2015/16;

• ANZSCO occupational description for Motor Mechanic (code 321211); and

• evidence of the applicant’s enrolment in his Certificate III in Light Vehicle Automotive Technology with Acumen Education (22 November 2016 – 19 December 2017).

1. As at the date of hearing, the applicant had not provided a subclass 457 skills assessment from TRA.

2. At the hearing, the applicant told the Tribunal that he and his wife did contact VETASSSES or TRA to obtain a skills assessment but they were told that the applicant needed 3 years of full time (or 6 years of part time) work experience to be eligible for an assessment, and in his circumstances, he was ineligible. The applicant stated that TRA refused to undertake a skills assessment because of their view that he did not satisfy the pre-requisite criteria.

3. The Tribunal had regard to the TRA website and its guidelines for the subclass 457 skills assessment program. The information on the TRA website is consistent with submissions of the applicants’ agent and indicate that the TRA will do a subclass 457 skills assessment for the occupation of Motor Mechanic (General) for a person who holds a passport from India (as is the case with the applicant). However, there are 2 skills assessment pathways. Pathway 1 is for persons who do not hold an Australian qualification in their trade. These skills assessments are conducted against the requirements of the relevant training package. Pathway 2 is for persons who hold relevant Australian VET qualifications or a current identified Australian occupational licence. The TRA guidelines note that, in addition to formal qualification(s), applicants must be able to demonstrate work experience consisting of at least 3 years of full-time employment in a directly related occupation, including 12 months of full-time paid employment in the nominated occupation in the 3 years prior to lodging the application. The Tribunal accepts that the applicant is not eligible to undertake a subclass 457 TRA skills assessment due to the above TRA prerequisite requirements that he must meet before TRA will undertake an assessment under pathway 1 or pathway 2.

4. The applicant told the Tribunal that in order to get assessed, he started a course on 22 November 2016, whereby he will obtain a Certificate IV by way of course study and which will therefore not be reliant on RPL. He anticipates that he will complete the course in May 2017; otherwise, he will complete the course in December 2017. 

5. As noted above, following the hearing, the Tribunal deferred making its decision to enable the applicant to complete another formal qualification through course work, and to undertake a skills assessment with TRA. The Tribunal initially deferred its decision until 20 June 2017, which was extended until 31 July 2017, and then to 2 October 2017.

6. On 28 September 2017, the applicants’ agent provided a certified copy of a skills assessment issued to the applicant on 19 September 2017 by Victoria University (stated to be contracted on behalf of TRA by the Department of Education and Training to conduct skills assessments on behalf of TRA).  The skills assessment indicates that the applicant has been successful in his application to have his skills assessed as suitable for his nominated occupation of Motor Mechanic (General) (ANZSCO code 321211).

7. On 3 and 16 October 2017, the Tribunal received verification from TRA that the applicant’s skills assessment was genuinely issued and was valid.

8. Based on the evidence before it, the Tribunal is satisfied that the applicant has a Certificate IV in Automotive Technology and now has at least 3 years of relevant work experience with his nominating employer. Either of these meets the skill level set out in ANZSCO for his nominated occupation of Motor Mechanic (General). The Tribunal is therefore satisfied that the applicant meets cl.457.223(4)(da) to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

9. In addition, the applicant has now obtained a positive formal skills occupation for his nominated occupation from Victoria University (on behalf of TRA) which the Tribunal has independently verified as genuine and valid. The Tribunal is therefore satisfied that the applicant meets the requirement in cl.457.223(4)(e) to demonstrate he has the required skills for his occupation.

10. For these reasons, the Tribunal finds that the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).

11. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 457 visa. As the second, third, fourth and fifth named applicants made their visa applications on the basis of being members of the family unit of the applicant, it follows that the outcome of their visa applications will be determined by the outcome of the applicant’s visa application upon remittal to the Department for reconsideration.

DECISION

1. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 457 visa:

   · cl.457.223(4)(da) of Schedule 2 to the Regulations; and

   · cl.457.223(4)(e) of Schedule 2 to the Regulations.

Alison Mercer
Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)

457.223

…

Standard business sponsorship

…

1. The applicant meets the requirements of this subclause if:

   (a)each of the following applies:

   (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

   (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

   (ba)either:

   (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

   (ii)     each of the following applies:

   (A)the applicant is employed to work in the nominated occupation;

   (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

   (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

   (d)the Minister is satisfied that:

   (i)    the applicant’s intention to perform the occupation is genuine; and

   (ii)     the position associated with the nominated occupation is genuine; and

   (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

   (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

   (eb)if:

   (i)    the applicant is not an exempt applicant; and

   (ii)     subclause (6) does not apply to the applicant;

   the applicant:

   (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

   (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

   (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

   (f)either:

   (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

   (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

   …

2. This subclause applies to an applicant if:

   (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

   (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

   …

3. In subclause (4):

   exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

Extract from PAM 3

Skills assessments

Overview

Under 457.223(4)(e), applicants may be required to demonstrate their skills in a specified manner. Under policy, this occurs via the visa applicant being requested to undergo a skills assessment.

Guidance is provided for officers in terms of:

• the types of skills assessments that can be requested – refer to:
• What types of skills assessments are available
• cases for which a skills assessment is mandatory for 457 visa applications (subject to available exemptions) – refer to:
• When is a formal skills assessment required
• cases for which a skills assessment may be requested at the decision maker’s discretion, and the circumstances in which, under policy, this would be done – refer to:
• When else can an applicant request a formal skills assessment

and

• how to manage skills assessment results – refer to:
• Managing skills assessment results.

Note: Skills assessments can also be requested in the context of visa applications lodged under Labour Agreement arrangements – refer to 457.223(2)(d). The policy guidance in relation to 457.223(4)(e) should be considered relevant when considering skills for labour agreement cases as well.

What types of skills assessments are available

Overview

Because there are different types of skills assessments available, officers need to be clear, when requesting an assessment be undertaken, the type of assessment that is required. For further guidance on the different types, refer to:

• The Trades Recognition Australia (TRA) 457 Skills Assessment Program
• Other types of skills assessments.

The Trades Recognition Australia (TRA) 457 Skills Assessment Program

The most common skills assessments requested in the context of the 457 programme are assessments that are managed by the Department of Education and Training, through TRA, specifically for the 457 programme (“TRA 457 skills assessments”). These are practical-based skills assessments, which are only available for certain applicants based on their occupation and passport country as outlined on the TRA website’s 457 Skills Assessment Program page.

Other types of skills assessments

If a TRA 457 skills assessment is not available, there are circumstances in which an officer may still wish to request a skills assessment if they have concerns that the applicant may not have the skills, qualifications and employment background to perform the tasks of the nominated occupation. Six of these skills assessment programmes are:

• TRA Offshore Skills Assessment (OSAP) – refer to the TRA website’s Offshore Skills Assessment Program page.
• TRA Job Ready Program - Final assessment – refer to the TRA website’s Job Ready Program (JRP) page.
• TRA migration skills assessment (a paper based assessment only) - refer to the TRA website’s TRA Migration Skills Assessment page.
• Offshore Technical Skills Record (OTSR)
• VETASSESS Skills Assessment for Migration (General Professional Occupations) – refer to the VETASSESS website’s Skills Assessment for General Professional Occupations page.
• VETASSESS 485 Skills Assessment – refer to the VETASSESS website’s Application Process page.

When is a formal skills assessment required

TRA skills assessment is available

Under policy, if TRA supports a 457 Skills Assessment for the nominated occupation and passport country of the visa applicant, then the applicant should be required to provide evidence of having completed this particular type of assessment in order to satisfy 457.223(2)(d) or (4)(e).

If TRA supports the provision of a 457 skills assessment but the visa applicant does not provide the outcome of the assessment, officers should provide the applicant with a formal request to provide this information (under s56 of the Act), and specify in the request the prescribed period (under regulation 2.15) to provide this information.

Officers can, however, exercise their discretion not to require this under policy if the visa applicant has already completed one of the following skills assessments in the nominated occupation:

• Offshore Skills Assessment Programme (OSAP)
• Offshore Technical Skills Record (OTSR)
• Job Ready Programme – Final assessment

or, if the applicant:

• currently holds a 457 visa as a primary sponsored person and is currently employed in the nominated occupation in Australia

or

• holds the relevant Australian qualification (Certificate IV or above) for the nominated occupation, gained by studying in Australia (that is, the person attended an in person course while in Australia)

or

• holds a relevant qualification that is commensurate with the level indicated in ANZSCO for the nominated occupation, that was gained by studying in a country that would not normally be subject to a TRA 457 skills assessment

or

• holds the relevant Australian licensing/registration for the nominated occupation

or

• seeks to fill a nominated occupation that is an intra-company transfer and is currently employed in a similar occupation for the same company overseas:
• If the nominated occupation is for an intra-company transfer (that is, an Intra-Corporate Transferee), officers may assume, without further enquiry, that applicants satisfy this criterion.
• Intra-Corporate Transferees are defined under the WTO GATS (World Trade Organisation General Agreement on Trade in Services) Uruguay Round as: “work for an enterprise established in the territory of a member and are transferred to the enterprise’s commercial presence in the territory of another member in the context of the supply of a service, often as executives, managers, specialists.”

Important: Consideration for a formal skills assessment exemption is done on a case-by-case basis. For example, even if a visa applicant meets one of the exemptions described immediately above, it is still open to officers to require the visa applicant to undertake a TRA 457 Skills Assessment if they have bona fides concerns relating to the applicant’s skills (as opposed to other potential concerns about the case) – refer to:

• When else can an applicant request a formal skills assessment.

Skills assessments for certain specific nominated occupations

Applicant is nominated as a Program and Project Administrator (ANZSCO 511112) or a Specialist Manager nec (ANZSCO 139999)

It is departmental policy that all applicants nominated in the occupations of Program and Project Administrator (ANZSCO 511112) and Specialist Managers nec (ANZSCO 139999) will be required to demonstrate that they meet 457.223(2)(d) or (4)(e) by providing evidence of having completed a Skills Assessment for migration purposes conducted by VETASSESS (General Professional Occupations). A VETASSESS 485 Skills Assessment is not acceptable for this purpose.

The only applicants exempt from this requirement are those who have been nominated to fill a position which is an intra-company transfer where the applicant is currently employed in a similar occupation to that nominated for the same company overseas.

If further advice is needed, officers may contact 457 programme management.

Applicant is Armature Winder nominated as an Electrician (General) (ANZSCO 341111)

The occupation of Armature Winder is classified by ANZSCO as a specialisation of Electrician (General). Visa applicants who will be working as Armature Winders and would otherwise be required to complete a TRA 457 skills assessment should be given the option of providing written evidence from the relevant licensing body of either holding the licence or their eligibility for licensing on arrival in Australia.

When else can an applicant request a formal skills assessment

Although it is possible to request a skills assessment for any occupation on the SOL/CSOL, given the objective of quick, streamlined entry for the 457 visa, requests for skilled migration skills assessments should occur only if it is not possible to make an assessment based upon the information provided by the applicant.

Applicants may be invited to submit a formal assessment from the relevant skills assessing authority (listed in the relevant legislative instrument) if an officer:

• has concerns about the skills of the applicant and
• believes they are not able to make an assessment, as it is unclear whether the applicant has suitable skills for the position based upon the information provided in the application and
• considers that the applicant does not have the qualifications or the skills to fill the nominated position.

Managing skills assessment results

TRA Assessment outcome - documentary evidence

Visa applicants who have initiated or completed a TRA 457 skills assessment should provide details of their unique Assessment ID when making their visa application. If visa applicants initiate the assessment after they have made their visa application, they should provide their immigration case officer with their unique Assessment ID as soon as it becomes available.

Unless requested to do so, visa applicants do not need to provide their immigration case officer with a copy of the formal documented decision (that is, the RTO outcome letter) because officers can check the details of an assessment with TRA using the visa applicant’s unique Assessment ID.

If a requested skill assessment is not provided

Applicants would not meet 457.223(2)(d) or (4)(e) if they:

• have been requested to demonstrate they have the skills to perform the nominated occupation and
• have been given a specified manner in which to demonstrate their skills (for example, a TRA 457 skills assessment) and
• do not provide evidence of having completed this assessment.

Applicants would also not meet 457.223(2)(d) or (4)(e) if they provide the outcome of a TRA 457 skills assessment or another approved skilled migration skills assessment but:

• the skills assessment outcome finds the applicant does not have the skills consistent with the nominated occupation or
• the skills assessment outcome finds the applicant has skills in an occupation less-skilled than the nominated occupation or
• based on other information, there is no doubt that the applicant’s skills are inconsistent with the nominated occupation.

Officers should have regard to all the information provided by the applicant in their visa application in regard to their abilities, including formal qualifications, training, experience, special skills and other personal attributes.