Dunlop (Migration)

[2023] AATA 2053

Dunlop (Migration) [2023] AATA 2053 (26 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Karen Louise Dunlop

CASE NUMBER:  1933154

HOME AFFAIRS REFERENCE(S):          BCC2019/4019554

MEMBER:Ian Berry

DATE:26 April 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 26 April 2023 at 2:42pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – skills assessment – Management Consultant – Customer Service Manager – occupations that can be nominated – LIN 19/051 – Medium and Long-term Strategic Skills List – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 31 October 2019 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 14 August 2019. 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 the applicant has been assessed during the last three years by a relevant assessing authority only in respect of the occupation of Customer Service Manager ANZSCO occupation code 149212.  But, the nominated occupation on the applicant’s 485 visa application is that of a Management Consultant.

4. The applicant appeared before the Tribunal on 17 April 2023 to give evidence and present arguments. The Tribunal received oral evidence from only the applicant.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 14 August 2019: Accordingly, the applicant is required to satisfy the requirements in clauses 485.223 and 485.224.

7. 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’.

8. ‘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 IMMI LIN 19/051.

9. The applicant did provide to the Department a skills assessment for the skilled occupation of Customer Service Manager.

10. On the evidence before the Tribunal, the applicant nominated the occupation of Management Consultant which is a specified skilled occupation, required for that occupation a skills assessment from VETASSESS, the relevant authority for assessing the applicant’s skills for that occupation.  A skills assessment was not provided by the applicant for that nominated occupation.

11. The applicant applied for an assessment of her nominated occupation. However, the applicant had always intended to apply for the nomination occupation of Customer Service Manager ANZSCO occupation code 149212 an occupation in the short-term skilled occupation list (LIN 19/051) with the assessing authority VETASSESS.

12. Before the lodgement of her visa application, the applicant received the receipt confirming the application had applied for the assessment of Customer Service Manager.

13. When it came to the completion of the applicant’s visa application, without the assistance of a Migration representative and on attempting to insert her nominated occupation from a drop-down list, the occupation of Customer Service Manager was not there. 

14. The applicant did not realise why her nominated occupation was not on the list, so she continued to complete the form by selecting an occupation closely related to Customer Service Manager.  The applicant selected Management Consultant which was, she thought, the closest occupation to customer service manager, from a selection of 6 to 8 occupations on that list.

15. The Customer Service Manager cannot be a nominated occupation in the subclass 485 visa. The relevant legislative instrument LIN 19/051, applicable from 5 March 2019, sets out the occupations which can be chosen for the 485 visa. Item 2 of sec 7 of LIN 19/051 states that persons who applies for a subclass 485 (Temporary Graduate) visa must select a nominated occupation only in the Medium and Long-term Strategic Skills List:

    ‘7        Specification of occupations and assessing authorities

    Application

    (1)       

Item	Class of persons	Applicable Lists
2	persons who apply for a Subclass 485 (temporary Graduate) visa on or after the day of this instrument commences	Medium and Long-term Strategic Skills List

1. There are two lists -  the Short-term Skilled Occupation List and the Medium and Long-term Strategic Skills List.  As shown above, only occupations listed in the Medium and Long-term strategic skills list can be a nominated occupation for the subclass 485 visa. 

2. The nomination occupations in each list differ. The Customer Service Manager is on the Short-term Skilled Occupation List and therefore cannot be approved as a nominated occupation on a 485 visa. The Management consultant is on the Medium and Long-term Strategic Skills List, but unfortunately the applicant did not have a skills assessment for that occupation.

3. The applicant, in choosing the occupations for a VC 485 visa, did not realise that an occupation in the  Short-term Skilled Occupation List, would not appear, as it is not an identified occupation for a 485 visa.

4. As the visa application, when made, was accompanied by evidence of an application for a skills assessment for the Customer Service Manager, as it is incapable of being a nominated occupation, the applicant does not satisfy the requirements of cl 485.223(1).

5. Therefore the requirements of cl 485.224(1) and (1A) are not met.

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

7. 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.

   Consideration of whether the Minister should consider intervention

8. The applicant has not requested the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.  However, probably the reason for the applicant not requesting this referral, is the reason that to she did not know that it could be done.  From information gleaned at the Tribunal by the applicant, there are circumstances the Minister should consider in exercising discretion.

9. The applicant is currently legally onshore.  Of Scottish heritage, arrived with her parents on 27 June 2009.  She has now been in Australia for 24 years.  On arrival she was aged 23 years and could not secure a dependency on her parents, because of her age.

10. The applicant secured sponsorship with the her then employer allowing her to apply for a UC-457 visa.  Her employer had been underpaying her wages resulting in a mutual separation with her employer providing some compensation.

11. It is unlikely the applicant would succeed in a review of the Tribunal’s decision, for the reason that it is technical in nature.  Effectively, she applied for a customer service manager as her nominated occupation.  As she did not have a migration representative, unknowingly applied the nominated occupation of customer service manager when that was not available to her in temporary graduate stream of the 485 visa subclass.

12. The applicant’s parents remain in Australia.  She is now 37 years of age and has effectively lost her connection with the her home country.  Acting in the role of a customer service manager she now has established a consultancy in the mobile camping tourist sector of which she has many years of experience.  Her consultancy involves a clientele both in Australia and New Zealand.  At the age of 37 years, avenues for employment at a customer service manager a fast diminishing.  She has a successful business and wishes to continue to provide service to the client’s and the tourist industry more particularly in mobile camping.

13. It is now for the applicant to set about obtaining such information which will assist the Minister considering her circumstances and whether she is able to have the Minister intervene.  It would be appropriate course for the applicant to put forward such information as is relevant, all of which is set out under sec 359 of the Regulations.

    DECISION

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

    Ian Berry
    Member