Detdaeng (Migration)

[2021] AATA 3715

Detdaeng (Migration) [2021] AATA 3715 (2 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Wanussanun Detdaeng
Mr Seni Detdaeng
Master Nannaphat Detdaeng

CASE NUMBER:  1911294

HOME AFFAIRS REFERENCE(S):          BCC2018/780843

MEMBER:John Cipolla

DATE:2 July 2021       

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 15 July 2021 at 11:02am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Chef – evidence of skills assessment – Trades Recognition Australia (TRA) – change in migration law and regulations – request for extension of time – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

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 16 April 2019 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 16 February 2018. At the time the 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). 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 to grant the visas on the basis that the first named applicant (the applicant) did not meet cl 457.223(4)(e) because the applicant after being requested to demonstrate that she had the skills necessary to perform the tasks of the occupation of Chef ANZSCO 351311 through Trades Recognition Australia (TRA) failed to do so.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant is able to meet the requirements of cl.457.223(4)(e). This requires that 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.

7. The evidence indicates that the applicant was requested by the Department to have her skills assessed by Trades Recognition Australia (TRA) on 12 December 2019, to establish that she had the requisite skills as a Chef. The initial request was made by the Department on 12 December 2018. On 9 January 2019 the applicant requested an extension of time to provide this evidence on the basis that the TRA assessment was going to take 12 weeks. This request was duly granted with an extension to 10 April 2019. On 10 April 2019 the applicant sought a further extension of time, this was considered but refused by the delegate on 15 April 2019. No further evidence pertaining to the requested TRA assessment was provided by the applicant and on 19 April 2019 the delegate proceeded to refuse the visa application.

8. The applicant lodged her application for merits review of the Departmental decision with the Administrative Appeals Tribunal on 6 May 2019. At the time of lodgement, the applicant uploaded a copy of the Departmental decision. The applicant was represented by a migration agent and the Tribunal finds that the applicant would have been cognisant of the basis for the refusal of her visa from the time she was notified of the adverse decision by the Department in April 2019.

9. On 24 March 2021 the Tribunal wrote to the applicant under s.359(2) of the Act seeking information, namely evidence of a skills assessment in her nominated occupation of Chef. The information was due on 7 April 2021.

10. On 5 April 2021, the applicant requested an extension of time to provide information to the Tribunal for the following reasons:

    I am writing to request an extension to provide the evidence of a skills assessment as requested in the letter from Administrative Appeals Tribunal on 24 March 2021.

    When I applied for 457 visa, I requested AGAPE IMMIGRATION PTY LTD to submit the skills assessment application for the nominated occupation of Chef on my behalf; however, unfortunately when the skills assessment application was about to be submitted, the rule has changed from the minimum of 3 years’ work experience to the minimum of 5 years work experience. At that time, I didn’t complete the 5 years of work experience hence I was unable to attend the assessment.

    After my visa application was refused, I was advised to appeal the decision to the Administrative Appeals Tribunal while accumulating work experience.

    I completed the 5 years of experience, but then due to the COVID-19 it became very challenging for the hospitality industry because of shutdowns.

    My work hours were reduced whereas my expenses were not reduced at all so I wouldn’t be able to afford the application fee for the skills assessment.

    Moreover, in 2020, I became pregnant. There are more expenses for me and my family to support pregnancy expenditure. Please find enclosed the letter from the Royal Hospital for Women, you may find additional information on the examination about the anomaly result of my child.

    I decided to return to Thailand to pursue further antenatal care and give birth in Thailand because pregnancy expenditure in Thailand is affordable for me. I departed Australia on 22 March 2021 after receiving a Bridging visa B.

    As a result, I would like to request an extension to provide the evidence of a skills assessment since I have already been in Thailand to pursue further antenatal care and to give birth in Thailand. Furthermore, due to the Australia border closure, I would not be able to return to Australia soon. I was hoping Administrative Appeals Tribunal would accept my request and give me an extension to provide the evidence of a skills assessment after I return to Australia.

11. The Tribunal responded to the request in the following:

    On 6 April 2021 we received a request for an extension of time for an indefinite period
    to enable you to return to Australia and provide evidence of a skills assessment in your
    nominated occupation.

    The Department’s decision record indicates that on 12 December 2018, you were
    requested to provide the Department with a skills assessment from TRA
    demonstrating that you had the skills necessary to perform the tasks of the nominated
    occupation. The delegate refused your application for a Temporary Business Entry
    (Class UC) visa on that basis. We note you have been aware of the need to provide a
    skills assessment from TRA for a significant period of time.

    The Department’s records also indicate you have been overseas since 22 March
    2021.

    In the circumstances and having considered the request carefully we have decided to
    grant an extension period of 6 weeks. The information is now to be received by 20 May 2021.

12. As at 1 July 2021 nothing further has been received from the applicant.

13. The Tribunal notes that the applicant lodged her visa application in February 2018 and was requested to have her skills assessed as a Chef by the relevant assessing authority TRA in December 2018. The applicant was given an extension of time by the delegate to provide this assessment.

14. The applicant has been represented by a migration agent and has been cognisant of the respective issue in the review, namely the need to provide an assessment of her skills by a relevant assessing authority.  The applicant to date has not been able to do this and there is no current assessment from Trades Recognition Australia that the applicant has the requisite skills necessary to perform the tasks of her nominated occupation of Chef.

15. The Tribunal is sympathetic to the circumstances of the applicant with respect to the fact that she has been impacted by the COVID pandemic, the reduction of work in Australia due to the pandemic, her pregnancy and the need to return to Thailand to give birth, along with financial issues impacting her ability to pay for the TRA assessment.

16. The Tribunal also notes that every opportunity has been afforded the applicant to provide evidence of a relevant skills assessment since December 2018 and to date this has not been forthcoming despite the applicant being onshore in Australia until March 2021.

17. The applicant has argued that at the time of the initial TRA assessment request in 2018, there was a change to the requirements pertaining to length of work experience, with a change from 3 years to 5 years which the applicant did not have at that time, suggesting that her TRA assessment would have failed.

18. The Tribunal notes that Migration law and regulations constantly change in the skilled migration area to reflect the needs of the Australian economy and workforce. The applicant may have been impacted by these changes. The applicant claims that she now has the requisite 5 years of work experience however, despite being given an extended time to provide this evidence, she has still been unable to provide evidence of a successful TRA assessment or any other evidence pertaining to her skills.

19. The Tribunal requires the applicant to demonstrate that she has the skills necessary to perform the nominated occupation of Chef. There is no evidence before the Tribunal at the time of this decision to demonstrate that the applicant has the skills necessary to perform the nominated occupation of Chef.  There is nothing before the Tribunal to demonstrate that the applicant has the skills required to work as a Chef.

20. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

21. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    John Cipolla
    Senior Member