Dosanjh (Migration)

[2018] AATA 2913

Dosanjh (Migration) [2018] AATA 2913 (11 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mandeep Kaur Dosanjh

CASE NUMBER:  1800883

DIBP REFERENCE(S):  BCC2017/1053058

MEMBER:Wan Shum

DATE:11 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 July 2018 at 2:32pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – Suitable skills assessment –Skills assessment for Registered Nurse (Medical) – Nominated position of Registered Nurse (Aged Care) – Extension of time granted to obtain skills assessment – No evidence of relevant reassessment for the occupation of Registered Nurse (Medical) – Assessed as suitable for the occupation of Registered Nurse (Aged Care) – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth) s9
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15, 2.26B 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 Immigration on 4 January 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 485 visa on 16 March 2017. 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).

3. The applicant nominated the occupation of Registered Nurse (Medical) (ANZSCO code: 254418). The delegate refused the visa because the applicant had not provided an assessment that her skills were suitable for the nominated occupation and did not satisfy cl.485.224 of Schedule 2 to the Regulations.

4. The applicant has sought review of that decision and was represented in relation to the review by a registered migration agent.

5. The applicant appeared before the Tribunal on 2 May 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.224 of Schedule 2 to the Regulations. This criterion is concerned with the applicant’s skills in relation to their nominated skilled occupation. The issue in the present case is whether the applicant meets this requirement.

8. ‘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 16/059.

9. On the material before the Tribunal, the applicant nominated the occupation of Registered Nurse (Medical) (ANZSCO code: 254418) which is a specified skilled occupation. For that occupation, the relevant assessing authority is Australian Nursing and Midwifery Accreditation Council (ANMAC).

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

10. 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).

11. There is an additional requirement that, if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course. ‘Registered course’ is defined to mean a ‘course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’ (r.1.03).

12. Prior to the hearing, the applicant provided documents including a determination for migration purposes by ANMAC dated 18 January 2018. This document states that the applicant’s skills have been assessed as suitable for the occupation of Registered Nurse (Aged Care) (ANZSCO code: 254412). However, as raised with the applicant at the hearing, this is not the occupation she nominated on her visa application form.

13. The Tribunal queried whether the applicant had lodged the application for assessment for migration purposes in respect of a specific occupation or whether the selection of the occupation had been made by ANMAC. The Tribunal requested a full copy of the application to ANMAC to be provided after the hearing. The Tribunal was provided with an email from ANMAC acknowledging the application and a partially completed cover letter which was required to be submitted with the documents for review by the assessing authority. Nothing was provided to indicate that the applicant had requested the skills assessment for the occupation of Registered Nurse (Medical) (ANZSCO code: 254418). Information from ANMAC is that the applicants specify the occupation they wish to be assessed against, and their website refers to the applicant selecting the occupation.[1]

    [1] >

    The Tribunal agreed to allow the applicant time to contact ANMAC to enquire as to whether a new assessment could be obtained for her nominated occupation of Registered Nurse (Medical) (ANZSCO code: 254418). The representative advised the Tribunal on 14 May 2018 that “the applicant contacted the Australian Nursing & Midwifery Accreditation Council (ANMAC) and they confirmed that they can change the occupation for [the applicant], given she needs to re-apply and the process of change of occupation may take up to 10 weeks. Kindly provide her sufficient time to apply for the change of occupation and we will keep you updated about the process and the result.”

14. On 17 May 2018, the Tribunal wrote to the applicant and indicated that further time will be allowed until 31 May 2018 because ANMAC had informed it that a reassessment usually takes 2 weeks. It was requested that the outcome or an update of the progress of reassessment be provided by 31 May 2018.

15. However, on 25 May 2018, the Tribunal received a phone call from the review applicant where she stated that she has contacted ANMAC to ask if they can change her occupation to medical. She said that they will not change it because her assessment is 5 years old. She said it will take another 3 months to redo the assessment and asked if the member would let her keep the occupation as is. The applicant was asked to put this in writing to the Tribunal which she apparently agreed to do.

16. The Tribunal did not receive any other communications from the applicant or her representative by 31 May 2018. An email was sent to the representative on 6 June 2018, referring to the phone call from the applicant on 25 May 2018 advising that ANMAC will not change her occupation and that she had not indicated that she would be seeking another assessment. In the email, It was advised that any submissions regarding the issue of having an assessment for a different occupation to the one nominated should be provided by 8 June 2018 and that the Tribunal would be proceeding to a decision after that date on the information before it.

17. The applicant has not provided anything to confirm that she has sought a reassessment and is awaiting the outcome. Nor has the Tribunal received any submissions regarding the assessment being for a different occupation to that nominated. Nothing further has been received to date.

18. The applicant was given a number of opportunities by the department to provide an assessment from ANMAC for her nominated occupation. The applicant advised that there were delays due to obtaining confirmation of overseas employment and that the outcome was not known until after the delegate made their decision, which the Tribunal accepts. However, on review, she has provided an assessment that her skills are suitable for the occupation of Registered Nurse (Aged Care). This is not the same occupation as that nominated in her visa application. The applicant was allowed time to make enquiries with the relevant assessing authority in respect of obtaining a reassessment, but ultimately does not appear to have taken steps to obtain one. There is thus no evidence before the Tribunal that the applicant has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation of Registered Nurse (Medical).

19. The Tribunal has had regard to the ANZSCO classification and notes that both occupations come within the same unit group of ANZSCO. However, the occupations of Registered Nurse (Medical) and Registered Nurse (Aged Care) are distinct, with separate ANZSCO codes. Each occupation has been individually specified in the relevant instrument in writing. The applicant advised that she had been working in Aged Care, which may explain why she was found to be suitable as a Registered Nurse (Aged Care). However, as this is not the occupation nominated on her visa application form, and it is not possible to change the occupation nominated during the processing of the application, the Tribunal cannot find that she meets the requirements of cl.485.224(1) on the information before it.

20. The requirements of cl.485.224 are thus not met.

21. 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

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

    Wan Shum
    Member