GREGOVICH (MIGRATION) - [2024] ARTA 132

GREGOVICH (MIGRATION) [2024] ARTA 132 (24 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Annouska Clare Gregovich
Respondent:  Minister for Home Affairs
Tribunal Number:  2405168

Tribunal:Senior Member Alison Mercer
Place:Melbourne
Date: 24 October 2024
Decision:The Tribunal affirms the decision not to grant the applicant a Skilled Employer Sponsored Regional (Provisional) (Class PE) visa.

Statement made on 24 October 2024 at 3:39pm

CATCHWORDS
MIGRATION – Skilled Employer Sponsored Regional (Provisional) (Class PE) visa – Subclass 494 Skilled Employer Sponsored Regional (Provisional) – occupation of Massage Therapist – incorrect skills assessment authority – time of visa application criterion – full time employment experience – limited information from employers – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 494.224
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 March 2024 to refuse to grant the applicant a Skilled Employer Sponsored Regional (Provisional) (Class PE) subclass 494 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 27 November 2023. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.494.224, which required that at the time that the applicant made her visa application, she had a skills assessment issued to her by the relevant assessing authority for her nominated occupation, and that she had at least 3 years of full time employment experience in her nominated occupation. The delegate found that the skills assessment provided by the applicant was not issued by the specified assessing authority for her nominated occupation of Massage Therapist, which was Vetassess, and therefore could not be accepted. The delegate was further not satisfied that the applicant had provided evidence of having at least 3 years of full time employment experience as a Massage Therapist or in a closely related occupation.
The Tribunal received a review application from the applicant on 18 March 2024. It was accompanied by a copy of the delegate’s decision and a written statement from the applicant, in which she made the following points:
…
I, Annouska Gregovich, would like to provide a written statement in regards to my notification of refusal of application for a Skilled Employer Sponsored Regional (Provisional) (class PE) Skilled Employer Sponsored Regional (Provisional) (subclass 494) visa.
I entered the process of application without previous experience or current guidance on how to correctly communicate/correspond with the office of home affairs to ensure I completed the process correctly.
During my time in Australia, I have been researching and achieving ways in which I can work in related skilled areas of profession. My first step was achieving a qualification assessment through Queensland Government. This allowed to me become a member of the Australian Natural Therapies Association (ANTA) to initiate working as a Massage Therapist here in Australia.
At the time of visa application, I initially thought this is what was referred to as a skills assessment, therefore, uploading the relevant documents at time of submission.
I received correspondence affirming this was the wrong documentation as I needed to gain a skills assessment through VETASSESS.
Additionally, at time of my visa application (29/11/2023) my employer had identified that I needed to be nominated. In order for this to happen he must become a registered sponsored employer.
I would like to stress that neither myself or employer had any prior knowledge to this process. However, it is important to note that my employer was confident that the home affairs website states this is a process that can be completed between employer and employee; without legal representation.
My employer was granted the nomination approval and submitted a nomination application.
Our understanding was that my applicant application was based off time of nomination approval. We weren’t aware that my original time frame for the further information request (28days) was in fact related to my original application.
Furthermore, it is important to also note that I have struggled to gain correspondence from my old employers in England to provide me with the relevant documentation.
I first contacted them at the time of visa application (29/11/2023).
I am missing information from two employers both at which confirmed to supply relevant documents.
EH Team confirmed on 29/11/23 and Move with a Smile confirmed on 30/11/23.
I have since received some correspondence from both, however, it is incomplete and I am still attempting to attain the correct information.
Most recently EH Team sent a letter on 16/03/24 which needs amendments as it doesn’t include all the information needed. Move with a Smile has recently confirmed this is something that will be provided in the next few days. Date of correspondence: 16/03/24.
To conclude, I did not start the VETASSESS process as I didn’t have the complete relevant information from my previous employers to successfully gain this assessment. VETASSESS clearly state to not start the process until all the information is collected.
The process so far has been disjointed and confused with the correct chronological steps which I believe had led to the decision refusal.
I hereby request for my current decision to be reviewed under the basis provided in this letter.
…
On 5 August 2024, the Tribunal wrote to the applicant to invite her to attend a hearing to be conducted by videoconference on 28 August 2024.
On 9 August 2024, the applicant responded to indicate that she would attend the hearing.
On 16 and 20 August 2024, the applicant provided the following documents:
·positive skills assessment issued to the applicant by Vetassess on 13 August 2024 for the occupation of Massage Therapist (ANZSCO code 411611);
·employment reference dated 5 December 2023 from David Lloyd Clubs, Gloucester, UK for the applicant for her period of employment as a Sports Massage Therapist (full time) between 15 April 2022 and 28 November 2022;
·letter dated 13 August 2024 from the applicant’s accountant confirming that she is self-employed as a sole trader and has worked as a Sports Massage Therapist from 7 August 2023 to date. He also attached her most recent tax return for 2023/2024;
·reference letter dated 3 March 2024 from Eden H Team confirming the applicant’s employment as a personal assistant including supporting independent living to a young woman with physical, sensory processing and learning disabilities. This also included weekly hydrotherapy rehabilitation sessions, daily physical activity as part of a rehab program for strength, mobility and motor control, and supplied massage for hypertonicity;
·reference letter from Find Your Freedom, undated, confirming the applicant’s employment there; and
·statutory declaration from the applicant dated 20 August 2024.
In her statutory declaration, the applicant made the following points:
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1. I worked for EH Team from September 2020 until June 2021. My duties included weekly hydrotherapy sessions, massage for hypertonicity, delivered rehabiliation program to improve stength, mobilty and motorcontrol. I averaged 45 hour weeks plus two sleep ins. I first contacted my previous employer "EH Team" on 29/11/23 to obtain employment infomation. An employment letter was recieved 16/03/24. The letter didn't include the dates at which I worked at the service. No ammendment was made therefore I didn't submit before time of assessment.
2. I worked as a full time employee at National Star College from January 2022 to April 2022 as a Physiotherpy Assistant. Main duties included completing rehabilitaion and treatment programs supplied by the Physiotherpists. Contacted previous employer "National Star" around the same time however I cannot find any correspondence. This may be due to contacting on my old work email that I no longer have access too. I do have an email to my supervisor on 14/03/24 stating I was attempting to receive employment information however I didn't recieve any response.
3. Contacted previous supivisor at "Move with a Smile" on 29/11/23 to obtain employment information. Recieved inadequet letter on 02/04/24 with no response since.
4. I was unaware of what a statutory declaration was prior to the refusal otherwise I would have submitted a form with my intial visa submission.
…
The applicant appeared before the Tribunal by videoconference on 28 August 2024 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by videoconference, determining that it was reasonable to hold a hearing by videoconference. In doing so, the Tribunal had regard to the nature of this matter and the individual circumstances of the applicant, who is based in Queensland, and the Presiding Member, who is based in the Tribunal’s Victorian registry. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant confirmed the contents of her written statements. She told the Tribunal that what she provided to the Department with her subclass 494 application was a registration document from the Queensland government that authorised her to work as a Massage Therapist there. The applicant said that she assumed that this was a skills assessment for the purposes of her visa application, and she noted that she was unfamiliar with the Australian system of state and federal governments, so assumed that the Queensland government assessment had national effect. The applicant added that the Queensland government assessment assessed her against the Australian Qualifications Framework (AQF) for her occupation, as did Vetassess. All of these factors led her to believe that she had provided the correct skills assessment for her occupation with her visa application, and she and her employer were shocked and dismayed when her visa application was refused.
The applicant said that she had received legal advice that she might be able to apply for a subclass 482 employer sponsored visa, but was also advised to appeal the subclass 494 visa application refusal to gain time to make other plans, if possible.
The applicant told the Tribunal that she first came to Australia as the holder of a Working Holiday visa, and then was employed by her current employer as a Massage Therapist. She said that her employer was a bit hot and cold about retaining her after the difficulties caused by her visa refusal, although he was happy with her work.
The Tribunal discussed with the applicant its view that the relevant legislative instrument specified that Vetassess (not the Queensland government) was the appropriate assessing authority to issue a skills assessment for her occupation (even if both bodies used a similar assessment framework), so it could not find that she had a skills assessment from Vetassess at the time she lodged her visa application. It noted that the relevant legislation did not provide any discretion in relation to this issue, and it suggested that she may want to obtain advice from a migration agent or lawyer about her options in the event that the Tribunal affirmed the decision under review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements in cl.494.224.
Clause 494.224(1) of Schedule 2 to the Regulations requires the applicant to demonstrate her skills as suitable for the nominated occupation in 1 of 3 ways at the time of application.
The first way to meet the skills assessment requirement is to satisfy both cls 494.224(2) and (3). Clause 494.224(2) requires that the applicant’s skills have been assessed as suitable by the person or body specified by the Minister as the assessing authority for the nominated occupation. Migration Instrument LIN 19/260 (as amended by LIN 22/054) specifies the relevant authority for the assessment of Massage Therapists as Vetassess.
The decision of the delegate outlines that the applicant had not applied for a skills assessment to Vetassess for her nominated occupation at the time that she made her visa application on 27 November 2023. At that time, she provided proof that she was registered and accredited with the Australian Natural Therapists’ Association and she also provided a letter dated 28 June 2023 from the Queensland government Department of Youth Justice, Employment, Small Business and Training which states that her overseas Bachelor degree qualification had been assessed as equivalent to an Australian Bachelor degree. The Tribunal acknowledges that the applicant believed that provision of this evidence met the requirement that at the time of her visa application, she had had her skills assessed as suitable to practice as a Massage Therapist in Australia (and these documents do indicate that she was authorised to do so).
However, neither of these documents was issued by the specified assessing body for the occupation of Massage Therapist for the purposes of cl.491.224(2), which is Vetassess, as per LIN 19/260.
The Tribunal acknowledges that the applicant subsequently provided evidence that she has now successfully obtained a skills assessment as a Massage Therapist from Vetassess. However, this skills assessment was issued on 13 August 2024, and therefore does not meet the requirement to have been obtained at the time of the subclass 494 visa application on 27 November 2023 set out in cl.494.224(1).
The second way to meet the skills assessment requirement is to satisfy both cls 494.224(4) and (5). Clause 494.224(4)(a) requires that at the time of application, the applicant held a subclass 457 or 482 visa for the same occupation and had demonstrated the necessary skills with a successful skills assessment by the relevant body.
The Tribunal is satisfied that the applicant has not held a subclass 457 or 482 visa, and thus cannot meet cl.494.224(4).
The final way to meet cl 494.224(1) is to be specified by the Minister as exempt from the requirements. Migration Instrument LIN 19/216 specifies the relevant exemptions. The Tribunal is satisfied that the applicant does not fall within the specified exemptions (as these are confined to academics or holders of subclass 444 or 461 visas, and the applicant does not fall within any of these categories).
Accordingly, the Tribunal must find that the applicant does not meet the requirements of cl 494.224 of Schedule 2 to the Regulations. As one of the essential requirements for the grant of the visa has not been met, the decision under review must be affirmed.
The Tribunal acknowledges the applicant’s evidence that she believed the documents she supplied to the Department at the time of her visa application constituted a positive skills assessment for her occupation of Massage Therapist, and considers this to be an understandable assumption, given the documents recognise her overseas qualification and accredit and register her to work as a Massage Therapist in Australia. However, neither document is a skills assessment issued by the specified assessing body, Vetassess, and the Tribunal has no legal power to waive or overlook this requirement.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled Employer Sponsored Regional (Provisional) (Class PE) visa.
Alison Mercer
Senior Member

Date(s) of hearing: 28 August 2024
Representative for the Applicant: None