Ho (Migration)

[2021] AATA 2313

Ho (Migration) [2021] AATA 2313 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Djiu San Ho
Mr Fo Bui Tjhang
Ms Rolanda Tjhang

CASE NUMBER:  1900323

HOME AFFAIRS REFERENCE(S):          BCC2018/2683190

MEMBER:Antonio Dronjic

DATE:11 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the first named and the second named applicants Skilled (Provisional) (Class VC) visas.

The Tribunal does not have jurisdiction in respect of the third named applicant.

Statement made on 11 May 2021 at 1:42pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Registered Nurse – unable to achieve the requested English results – no positive skills assessment at time of hearing –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 363
Migration Regulations 1994, 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 20 December 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 18 July 2018. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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 visas because the first named applicant (the applicant) did not satisfy cl 485.224(1) of Schedule 2 to the Regulations because the applicant did not provide evidence that her skills for the nominated occupation had been assessed as suitable by the relevant assessing authority.

4. The applicants appeared before the Tribunal on 6 May 2021 to give evidence and present arguments. 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 applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl 485.223 and cl 485.224 of Schedule 2 to the Regulations. These criteria are concerned with the applicant’s skills in relation to their nominated skilled occupation. The issue in the present case is whether the applicant meets those requirements.

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

7. 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).

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

9. In her evidence, the applicant confirmed that in her visa application she had nominated the occupation of Registered Nurse (ANZSCO 254499) and stated that on 16 July 2018 she applied for a skills assessment to the Australian Nursing and Midwifery Accreditation Council (ANMAC). The applicant explained that, to obtain a skills assessment from ANMAC, she must first be registered as a nurse with the Australian Health Practitioners Regulation Agency (AHPRA).

10. On 11 October 2018, she received the Notice of withdrawal of application for renewal of registration from AHPRA.

11. In her evidence, the applicant stated that to obtain registration with AHPRA, she must demonstrate that she has a proficient level of English language competency. Despite undertaking several English language tests, she was unable to achieve the requested results. With her review application, the applicant submitted several English language test results.

12. The applicant’s representative requested that the Tribunal adjourn making its decision until the applicant undertakes another English language test, achieves the desired outcome, and then applies to AHPRA for registration.

13. The Tribunal 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 evidence of holding a successful skills assessment for her nominated occupation of a registered nurse.

14. The Tribunal considered whether, in the circumstances of this case, the applicant had a fair opportunity to provide evidence of holding a successful skills assessment for her nominated occupation, previous requests and extensions of time granted to the applicant in order to obtain a skills assessment and the significance of the information to the applicants.

15. The Tribunal considered the history of the proceedings and whether the adjournment of its decision would be reasonable, having regard to the statutory direction that the Tribunal conduct its review in a manner which ‘is fair, just, economical, informal and quick’.

16. The Tribunal has had regard to the fact that the visa applications were refused by the Department on 20 December 2018, because the first named applicant was unable to meet cl 485.224(1) which requires that the skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation. Accordingly, the applicants have been aware of the reasons for the visas’ refusal for more than 2 years.

17. On 4 February 2019, the Tribunal wrote to the applicants inviting them to provide evidence that the relevant assessing authority assessed the applicant’s skills as suitable for her nominated occupation.

18. On 14 February 2019, the Tribunal wrote the following letter to the applicants:

    On 4 February, we wrote to you requesting evidence of a completed skills assessment or evidence that you have applied to have your skills assessed for your nominated occupation. We have received a response dated 14 February noting that your AHPRA registration application has been withdrawn.

    According to the submission that you lodged with your review application, you state that you are unable to obtain a skills assessment because your registration has been refused with AHPRA, and that registration with AHPRA will not be possible without an approved English test.

    To date, the Tribunal has not received evidence of you having re-applied for either an approved English test, AHPRA registration or a skills assessment with ANMAC.

19. On 14 February 2019, the applicant responded to the Tribunal’s letter stating that she undertook English tests several times and only got 55 in the Pearson Test of English Academic (PTE Academic). She stated that she is taking a PTE course and practising PTE all the time and trying her very best to get the required score.

20. On 29 April 2019, the Tribunal wrote to the applicant inviting her to provide an update to the Tribunal by 13 May 2019, in relation to her AHPRA registration.

21. On 13 May 2019, the applicant responded to the Tribunal’s letter stating that she had recently booked a PTE test for 27 August 2019. On 24 September 2019, the Tribunal wrote to the applicant asking her to provide her PTE test results. On 26 September 2019, the applicant informed the Tribunal that she had booked another test for 19 November 2019.

22. On 18 December 2019, the Tribunal again requested that the applicant provide evidence of English test results undertaken on 19 November 2019. On 23 December 2019, the applicant wrote to the Tribunal informing it that she did not ‘pass her PTE test’.

23. At the time of the Tribunal hearing the applicant did not present evidence that she had booked another English language test. There is no certainty as to if and when the applicant will achieve the requested English language test results for the purposes of registering with AHPRA.

24. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide evidence of holding a successful skills assessment for her nominated occupation.

25. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further.

26. The Tribunal explained the requirements of cl 485.224(1) and noted that the issue before the Tribunal is whether 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.

27. The applicant confirmed in her evidence that, as at the time of the hearing, she does not have a positive skills assessment for her nominated occupation of Registered Nurse.

28. Based on the evidence before it, the Tribunal finds that the skills of the applicant for her nominated skilled occupation have not been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation. Therefore, the requirements of cl 485.224 are not met.

29. Based on 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.

30. To meet cl 485.311, the secondary applicants must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 485 visa. As the first named applicant does not satisfy the primary criteria for a Subclass 485 visa, the Tribunal finds that the second named applicant does not satisfy cl 485.311. There is no evidence before the Tribunal that the second named applicant meets the primary criteria in his own right.

    DECISION

31. The Tribunal affirms the decision not to grant the first named and the second named applicants Skilled (Provisional) (Class VC) visas.

32. The Tribunal does not have jurisdiction in respect of the third named applicant.

    Antonio Dronjic
    Member