Ismail (Migration)

[2017] AATA 115

Ismail (Migration) [2017] AATA 115 (13 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Marlini Ismail
Mr Ridwan Rajin
Master Sufi Ridwan
Master Khair Ridwan
Master Furqan Ridwan

CASE NUMBER:  1609921

DIBP REFERENCE(S):  BCC2016/943240

MEMBER:Mary-Ann Cooper

DATE:13 January 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 January 2017 at 9:47am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Graduate Work stream – Subclass 485 – Skills assessment – Welfare Centre Manager – Australian Community Workers Association – Unsuccessful skills assessment – Wrong occupation nominated – English language competency – No skills assessment provided

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.224, r 1.03, r 1.15I, r 2.26B

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 14 June 2016 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 May 2016. 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 (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 of Schedule 2 to the Regulations because she failed to provide evidence that his skills had been assessed as suitable for her nominated skilled occupation.

4. The applicant appeared before the Tribunal by telephone on 15 December 2016 and 10 January 2017 to give evidence and present arguments. 

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 includes cl.485.224 of Schedule 2 to the Regulations. This criterion is concerned with the applicant’s skills in relation to his or her nominated skilled occupation. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa. 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. ‘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. The relevant instrument for this purpose is Legislative Instrument IMMI 16/060.

9. ‘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 for this purpose is also Legislative Instrument IMMI 16/060.

10. On the evidence before the tribunal, the applicant nominated the occupation of Welfare Centre Manager (ANZSCO code 134214), which is a relevantly specified skilled occupation. For that occupation, the relevant assessing authorities are further specified as the Australian Community Workers Association (ACWA) and VETASSESS.

11. In her visa application the applicant claimed to have applied for her skills assessment on 5 February 2016 with ACWA. As recorded in the delegate’s decision, a copy of which was provided with the review application, the applicant provided evidence that her skills assessment application for the occupation of Welfare Worker was unsuccessful. Therefore the delegate was not satisfied that the applicant’s nominated skilled occupation had been relevantly assessed and refused the applications.

12. Prior to the hearing the applicant provided a submission and information which demonstrated that her initial skills assessment was unsuitable because she did not have the requisite language skills or experience for the occupation of Welfare Worker. She outlined the work she was performing and said she needed 12 months’ more experience in order to achieve a suitable skills assessment from ACWA.

13. At the hearing the applicant acknowledged that she did not currently have a skills assessment for her nominated occupation of Welfare Centre Manager. She confirmed that she sought further time, about 12 months, to gain the necessary work experience for a successful skills assessment. Correspondence from the Metropolitan Migrant Resource Centre confirmed that she had been working with it as a volunteer for 2 days per week since January 2016 and that from November 2016 she was given paid employment for 15 hours per week. Her duties were listed as ‘employment resume writing, and mentoring, administrative tasks and accommodation set-ups for new refugee arrivals’. The applicant told the tribunal that she thought she had nominated the wrong occupation and that she should have chosen the occupation of Welfare Worker. She said she had a new contract to June 2017 and felt she had a chance to get another contract to take her to the required two years’ experience at which point she said she felt sure she would pass the assessment.

14. The tribunal noted her acknowledgement that she had nominated the wrong occupation and that the terms of the legislation indicated that she could not change her nominated occupation. That is, that she is required to provide a successful skills assessment for “the” nominated occupation.  The tribunal also asked her if she had achieved the requisite English language competency for the occupation. The applicant noted that she only had to have a minimum overall score of 5 for the visa and she had achieved it. The tribunal observed that ACWA required a different score to assess her skills as suitable and this was higher than the subclass 485 English language requirements. The tribunal said it considered her claim, that she would gain suitable skills assessment after 12 months more experience, was purely speculative. Absent any indication that she would meet the English language competency requirements, the tribunal said it was disinclined to wait 12 months or more for her to get the necessary work experience that might or might not lead to an assessment of her skills as suitable for her nominated occupation. The applicant asked for more time to check with ACWA what was required. The tribunal noted that she had already had significant time to make any further inquiries. It recommended she seek some further advice and allowed some time for this and further submissions. The applicant later wrote to the tribunal asking what type of evidence the tribunal needed. She also wrote that she had sought advice from her local Federal MP.

15. Given her apparent confusion, the tribunal relisted the matter for hearing on 10 January 2017.

16. At the relisted hearing the applicant confirmed that she had nominated the occupation of Welfare Centre Manager and had applied for a skills assessment for the occupation of Welfare Worker, which had been unsuccessful. She confirmed that she was seeking the tribunal wait 11 months for her to gain the additional experience she needed to get successful skills assessment. The tribunal asked if ACWA had told her it would accept her experience as relevant to its assessment. She said she could not remember but that its website indicated volunteer and part-time work would be taken into account. The tribunal asked her whether the skills assessment to which she referred was for a Welfare Worker or a Welfare Centre Manager. She responded that it was for a Welfare Worker. She confirmed she had not applied for a skills assessment for her nominated occupation. When asked why, she explained that she nominated Welfare Centre Manager because Welfare Worker, the occupation she thought most appropriate to her qualifications, was not listed in the relevant Schedule of the Skilled Occupation List. The only other relevant occupation which was listed was Welfare Centre Manager and that was the reason she nominated it. She outlined her work duties, which she claimed covered some management tasks, and said she thought she could be a Welfare Centre Manager in 5 years. The tribunal observed that even if it waited 11 months, and she achieved a successful skills assessment, she still would not meet the relevant requirements of cl.485.224 because Welfare Worker was not her nominated occupation. It further noted that it understood a bachelor degree or at least 5 years’ experience was necessary for the occupation of Welfare Centre Manager. She responded she was “waiting for things” and that she might get a sponsorship. She also claimed that she was planning to undertake a degree in Social Work.

17. Other than the applicant’s oral evidence, there is little before the tribunal indicating that, should the tribunal wait 12 months for the applicant to gain extra experience, a successful skills assessment for her nominated (or other) occupation is assured or even likely. The tribunal is not persuaded that the nature of her part-time work, either as an employee or volunteer, would be sufficient to meet the 2-year fulltime equivalent work experience required by ACWA[1]. Her current employment contract is stated to be for the period 1 January 2017 to 30 June 2017. Notwithstanding her confidence that it will be extended, it remains a possibility that it will not.  In addition, there is nothing before the tribunal that indicates in 11 months she would meet, or is currently close to meeting, the required English language proficiency. In any event, as acknowledged by the applicant, these are the requirements for a successful skills assessment for the occupation of Welfare Worker, not her nominated occupation of Welfare Centre Manager.

    [1] See correspondence from ACWA to review applicant dated 18 March 2016.

18. The tribunal considered whether, in the circumstances of this case, evidence that the applicant meets the requirements of cl.485.224 is likely to be forthcoming, whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

19. As the tribunal told the applicant, notwithstanding her certainty that she would achieve a successful skills assessment, it considered her claims purely speculative. In this circumstance, and given the tribunal’s objectives of a mechanism of review that is not only fair, just and informal but is also economical and quick, there was no reasonable basis on which it considered it could delay its decision for the requested period of 11 months. In fact it would be futile given the assessment on which she would rely was not for her nominated occupation. That is, even if the tribunal allowed the applicant the 11 months she is requesting to provide a successful skills assessment for the occupation of Welfare Worker, she would not satisfy the requirements of cl.485.224(1) because this is not her nominated skilled occupation. It follows that the information she seeks to provide is not significant because it would have no positive impact on the tribunal’s assessment of whether she meets cl.485.224. Given that it is now 10 months since the applicant made her application the tribunal considers she has had a fair opportunity to provide the relevant skills assessment for her nominated occupation. In addition, there is nothing before the tribunal which suggests that in 11 months a successful skills assessment for her nominated occupation of Welfare Centre Manager would be forthcoming. Notwithstanding her stated intentions to undertake a degree in Social work, there is no evidence of her application, acceptance or enrolment in a relevant degree. Furthermore the tribunal is not satisfied she would complete such a degree (as well as the required work experience) in the 11 months she has requested that the tribunal delay its decision.

20. On this basis the tribunal is not satisfied that the applicant’s skills have been assessed as suitable for her nominated skilled occupation of Welfare Centre Manager by a relevant assessing authority during the last three years.       

21. It follows that the applicant does not meet the requirements of cl.485.224(1). Therefore she does not meet cl.485.224 as a whole.

    CONCLUSION

22. 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.

    Secondary applicants

23. The delegate also refused a visa to the secondary applicants, the partner and children of the visa applicant and who are included in her application.

24. There is no claim or any evidence before the Tribunal that the remaining applicants meet the primary criteria for the grant of the visa. In addition, to meet clause 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 applicant does not satisfy the primary criteria for a subclass 485 visa, or any other subclass, the Tribunal finds that the secondary applicants also do not satisfy clause 485.311 and, therefore, the criteria for a subclass 485 visas, or any other subclass.

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Mary-Ann Cooper
    Member