KAUR (Migration)

[2018] AATA 1441

KAUR (Migration) [2018] AATA 1441 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs SUKHWINDER KAUR -
Mr GAGANDEEP SINGH 

CASE NUMBER:  1728335

DIBP REFERENCE(S):  BCC2017/1011523

MEMBER:Amanda Mendes Da Costa

DATE:8 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 08 May 2018 at 1:08pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Whether the applicant has been assessed as suitable for the nominated occupation – Specified skilled occupation – Early Childhood (Pre-Primary School) Teacher – Unable to obtain a skills assessment by the Australian Institute for Teaching and School Leadership (AITSL) – Did not successfully complete the International English Language Test System (IELTS)

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15l, 2.26B Schedule 2 cls 485.223, 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 14 November 2017 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 14 March 2017. 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(1) of Schedule 2 to the Regulations because the applicant did not provided evidence that she had successfully undertaken a skills assessment from the relevant testing authority.

4. The applicants appeared before the Tribunal on 13 April 2018 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 include cl.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. The issue in the present case is whether the applicant meets those requirements.

   Had the applicant applied for a relevant skills assessment?

7. Clause 485.223 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 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 evidence before the Tribunal, the applicant nominated the occupation of Early Childhood (Pre-Primary School) Teacher, ANZCO Code 241111 which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Australian Institute for Teaching and School Leadership.

10. When the applicant made the application on 14 March 2017, she declared on the form that she had applied for a skills assessment from AITSL on 22 December 2016 and provided the reference number WAMS01353/16.  In her oral evidence the applicant confirmed this information.

11. The Tribunal is satisfied that when the visa application was made, it was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority; the applicant satisfies the requirements of cl.485.223.

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

12. 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).

13. On 12 May 2017 the Department sent an email to the applicant, requesting that she provided evidence that she had successfully completed a skills assessment by the relevant testing authority.

14. On 8 June 2018 the applicant provided the Department with a copy of an email from AITSL dated 10 February 2017 stating that AITSL had commenced an assessment of her skills and that a further document, namely a certified copy of the applicant’s International English Language Test System (IELTS) test with a score of seven or more for reading and eight or more for speaking and listening.

15. On 14 June 2017 the Department sent an email to the applicant requesting that she provide evidence that undertaken or booked to take an IELTS test.

16. On 20 June 2017 the applicant provided the Department with evidence that she had made a booking to undertake the IELTS test on 8 and 15 July 2017.

17. On 8 August 2017 the Department sent a further email to the applicant requesting that she provide the outcome of her skills assessment.

18. On 5 September 2017 the applicant advised the Department that AITSL had granted her an extension of time in which to provide her IELTS test results to it.

19. On 8 September 2017 the Department sent an email to the applicant granting her an extension until 30 September 2017 in which to provide the skills assessment from AITSL.

20. On 30 September 2017 the applicant advised the Department that she had not achieved the required scores in her IELTS test and requested a further extension of time in which to provide a skills assessment from AITSL to the Department.

21. On 9 October 2017 the Department sent an email to the applicant, requesting evidence that she had lodged an intended appeal for a review of her IELTS test results.  The applicant responded to this email on 15 October 2017 and provided a copy of a receipt for a remark of her IELTS test, dated 10 October 2017.

22. On 16 October 2017 the Department sent a further email to the applicant, requesting that she provide her skills assessment by 13 November 2017.  On that date, the applicant advised the Department that she had not received an outcome from her skills assessment.  She also advised that she had undertaken another IELTS test on 10 October 2017 but had not achieved the overall score required by AITSL.

23. In her oral evidence the applicant told the Tribunal that she had been unable to obtain a skills assessment by AITSL as she had not successfully undertaken the IELTS test.

24. The Tribunal finds that the applicant’s skills for her nominated skilled occupation have not been assessed during the past three years by a relevant assessing authority.  Therefore, the requirements of cl.485.224 are not met.

25. As the applicant does not meet the primary criteria for the granting of the visa, the secondary applicant does not meet cl.485.311.

26. On the basis of the above findings, the Tribunal finds that the applicants do not satisfy the criteria for the grant of Subclass 485 visas. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

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

    Amanda Mendes Da Costa
    Member