CRAWFORD (Migration)

[2023] AATA 3049

CRAWFORD (Migration) [2023] AATA 3049 (1 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss JENNIFER CLAIRE CRAWFORD

REPRESENTATIVE:  Mr Avinash POINEN (MARN: 1171786)

CASE NUMBER:  2113296

HOME AFFAIRS REFERENCE(S):          BCC2020/213905

MEMBER:Mary Sheargold

DATE:1 September 2023

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 September 2023 at 2:31pm

CATCHWORDS 
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Horse Trainer – applicant failed to provide the requested information – outcome on the application for a skills assessment was not provide to the Department prior to the delegate’s decision – decision under review affirmed 

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15 , 1.03, Schedule 2, cl 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 Home Affairs on 9 September 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 January 2020. 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 (Cth) (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 she did not provide a skills assessment from Trades Recognition Australia for her nominated skilled occupation, Horse Trainer, ANZSCO 361112.

4. The applicant was represented in relation to the review.

5. On 3 August 2023, the Tribunal wrote to the applicant inviting her to provide information that demonstrated that she could meet the requirements of cl.485.224 of Schedule 2 to the Regulations at the time of the Tribunal’s decision. A response to the request for information was due by 17 August 2023. As at the date of this decision, no response has been received.

6. The Tribunal notes it has not received the information requested, and in these circumstances, it is able to proceed to decision based on the evidence before it.

7. The Tribunal has considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support his review application.

8. In doing so, the Tribunal has taken into account the decisions in the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court of Australia decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

   [1] [2002] FCA 617.

   [2] [2012] FMCA 28.

   [3] [2013] HCA 18 (8 May 2013).

   [4] [2014] FCAFC 1 (4 February 2014).

   [5] [2014] FCA 915 (28 August 2014).

9. The Tribunal has considered whether, in the circumstances of this case, the information that the applicant meets the requirements in cl.485.224 of Schedule 2 to the Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information already, and the significance of the information to the applicant.

10. The Tribunal has had regard to the fact that the application was refused by the Department on 9 September 2021 because the delegate found that the applicant had not provided a skills assessment.  The Tribunal observes that the applicant has been aware for more than 2 years of the reasons for the visa refusal.

11. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether he can demonstrate that she meets the requirements of cl.485.224 of Schedule 2 to the Regulations at the time of the Tribunal’s decision. The Tribunal is not disposed to delay making its decision indefinitely.

12. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that she meets the requirements of cl.485.224 of Schedule 2 to the Regulations.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cls 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. Neither of these requirements apply if the visa application was made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1 to the Regulations. In this case, the visa application was made on 29 January 2020. Accordingly, the applicant is required to satisfy the requirements in cls 485.223 and 485.224.

    Had the applicant applied for a relevant skills assessment?

15. Clause 485.223(1) 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’.

16. ‘Skilled occupation’ has the meaning given by reg 1.15I of the Regulations (reg 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 reg 2.26B of the Regulations (reg 1.03). The relevant instrument is Legislative Instrument LIN 19/051.

17. On the evidence before the Tribunal, the applicant nominated the occupation of Horse Trainer, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia.

18. Based on the evidence before it, the Tribunal is satisfied that 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(1).

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

19. 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).

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

21. An outcome on the application for a skills assessment was not provide to the Department prior to the delegate’s decision.  At the time of the Tribunal’s decision, no updated information has been provided to demonstrate that the applicant has obtained a positive skills assessment from Trades Recognition Australia, despite being given an opportunity to do so.

22. Therefore the requirements of cl 485.224(1) are not met.

23. It follows that the applicant does not meet the requirements of cl 485.224.

24. 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

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

    Mary Sheargold
    Member