CASTILLO DUCHI (Migration)

[2020] AATA 464

CASTILLO DUCHI (Migration) [2020] AATA 464 (7 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jessica Patricia CASTILLO DUCHI

CASE NUMBER:  1903358

DIBP REFERENCE(S):  BCC2018/3306582

MEMBER:Catherine Carney-Orsborn

DATE:7 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 07 January 2020 at 10:34am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Finance Manager – evidence of skills assessment not provided – medical certificate not provided – did not appear at rescheduled hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A(5)

Migration Regulations 1994 (Cth), rr 1.03, 1.15, Schedule 2, cls 485.223, 485.224

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 29 January 2019 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 31 August 2018. 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 no evidence of a suitable skills assessment was provided.

4. On 15 February 2019 the Tribunal acknowledged the applicant’s application for review.  In the correspondence the Tribunal asked the applicant to provide any further information or written arguments as soon as possible. The Tribunal also provided an information sheet setting out how to provide further information.

5. No further information was provided.

6. On 22 October 2019 the Tribunal invited the applicant to attend a hearing on 26 November 2019.  The correspondence requested the applicant to provide any documents she wished to rely on to establish that she met the criteria for the visa.

7. On 25 November 2019 the applicant sent correspondence requesting an adjournment.  She provided a one line medical certificate which stated that she was unfit for work from 25 November 2019 to 26 November 2019.

8. She provided a copy of a script for medication in relation to gastro and a copy of a request for blood tests.  The script had no repeats.  There was no evidence that blood tests had been undertaken.

9. The Tribunal responded that the applicant could attend the hearing on the 26 November 2019 by telephone and requested the applicant to provide a phone number. The applicant provided a phone number on which she would be contactable.

10. At hearing on the 26 November 2019 the Tribunal attempted to call the applicant however the call was unanswered.

11. No further correspondence was received from the applicant.

12. The Tribunal considered the request for the adjournment and granted the request.

13. On 27 November 2019 the Tribunal invited the applicant to a further hearing on 11 December 2019.  The invitation again requested the applicant to provide any relevant information in relation to the criteria and any request for a further adjournment.  The invitation stated that that a further adjournment will only be considered if there is a very good reason for the adjournment.

14. No correspondence or information was provided.  Two SMS reminders were sent to the applicant’s mobile number on the 4 December 2019 and 10 December 2019. 

15. The applicant did not attend the rescheduled hearing listed for 10am on the 11 December 2019.

16. At 4.37pm on 11 December 2019 the applicant called the Tribunal.  She stated that she was unable to attend the hearing for medical reasons.  She claimed it was the same situation and she had a medical certificate.  She was advised to send her explanation in writing to the same address that she had been using to correspond with the Tribunal and to include medical evidence.

17. No further information was provided.

18. The Tribunal has considered this further request.

19. No medical certificate was provided in relation to her request for a third hearing date. 

20. There is nothing before the Tribunal to indicate that she is suffering from a medical condition which would stop the applicant providing evidence on her skills assessment to the Tribunal. 

21. After considering all the information before it the Tribunal is not satisfied that a third hearing should be offered to the applicant and declines to reschedule the hearing for a third hearing.

22. The review applicant did not appear before the Tribunal on the days and at the scheduled times and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to two hearings in accordance with s.379A(5), the invitation has not been returned to sender, and two separate SMS reminders were also sent to the review applicant about the hearing. The applicant contacted the Tribunal on 11 December 2019 as set out above however provided no updated medical certificates or information on any medical condition. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. 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?

25. 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’.

26. ‘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 18/007.

27. On the evidence before the Tribunal, the applicant nominated the occupation of Finance Manager

28. In the online application lodged by the applicant on 31 August 2018 she replied No to the question “Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?”

29. 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.

30. 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).

31. No skills assessment was provided.  No further information or evidence in relation to the skills assessment was provided to the Tribunal.

32. It follows that the applicant the requirements of cl.485.224.

33. There is nothing before the Tribunal to indicate that the applicant would meet the criteria for the post-study stream.

34. 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

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

    Catherine Carney-Orsborn
    Member