Masilamani (Migration)

[2018] AATA 5743

Masilamani (Migration) [2018] AATA 5743 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Nandhagopal Masilamani

CASE NUMBER:  1812054

DIBP REFERENCE(S):  BCC2017/4682368

MEMBER:Alan McMurran

DATE:8 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 November 2018 at 1:17pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Physicist (Medical Physicist only) – skills assessment – finalised after lodgement of application – further relevant work experience required – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 23 April 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 December 2017. 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 (the Regulations). The primary criteria must be satisfied by at least one applicant.

3. The applicant is a citizen of India who applied for the occupation of Physicist (Medical Physicist only) ANZSCO 234914.

4. The delegate refused the visa because the applicant did not satisfy cl.485.224(1) of Schedule 2 to the Regulations because at the time of decision, the applicant had not provided evidence that his skills had been assessed by a relevant assessing authority as suitable for the nominated occupation.

5. The applicant appeared before the Tribunal on 26 October 2018 to give evidence and present arguments. On conclusion of the hearing, the applicant asked for a further period to respond to the Tribunal with details of any further communications from the relevant assessing authority (referred to below) and/or any potential nominator offering to sponsor the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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’.

9. ‘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.

10. On the evidence before the Tribunal, the applicant nominated the occupation of Physicist (Medical Physicist only) ANZSCO 234914 which is a specified skilled occupation in the relevant Instrument 16/059. For that occupation, the relevant assessing authority specified is The Australasian College of Physical Scientists & Engineers in Medicine.[1](ACPSEM).

    [1] IMMI 16/059

11. At the time of application on 8 December 2017, the application was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by the relevant assessing authority, ACPSEM. The Tribunal has had regard to an email from ACPSEM dated 8 December 2017 acknowledging the application, and that the assessing authority has “begun the processing of your application”.

12. The application for assessment by ACPSEM was not finalised until after lodgement of the application. The result of the assessment was not known at the time of decision by the delegate, but was ultimately negative, and the applicant lodged an appeal against the assessment decision. The appeal was determined and the outcome reported on 25 July 2018 by ACPSEM.

13. Lodgement of an accompanying application for assessment is a criterion for when the application is made, and the courts have held that a measure of flexibility needs to be applied to the words “accompanied by” such that the evidence is not required to be provided with the application itself.

14. In this instance, the Tribunal is satisfied and finds that the application for assessment of the skills for the nominated occupation was provided with the application in December 2017, although not finally determined until July 2018.

15. As the visa application, when made, 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?

16. 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).

17. The applicant’s skills assessment was completed on 25 July 2018, on the basis of an appeal of an initial assessment made by ACPSEM. The initial assessment was negative and found that neither the applicant’s MSc nor PhD met the requirements of being in the field of Medical Physics.

18. The report on the appeal sets out the minimum requirements to be met in order to be considered a Medical Physicist. The requirements include a finding the applicant has a four-year degree in physics, plus 12 months full-time experience working as a medical physicist.

19. The appeal panel concluded on the available information that the applicant met the qualification for a 4 year BSc degree in physics for the purposes of the application. In addition, the applicant was required to demonstrate a minimum full-time work experience as a medical physicist for a period of 12 months. The appeal panel concluded on the basis of the applicant’s work experience and history that “no more than 3 months was evident”. As a consequence, the applicant was advised he did not meet the requirement for assessment as a Medical Physicist until he had completed a further 9 months of relevant work experience.

20. Considerable time was taken up at the hearing discussing the applicant’s work experience and intentions, in order to complete the required period.

21. The applicant was concerned that he did not understand how his prior work experience was not acceptable to ACPSEM in order to achieve the minimum 12 month work experience period. He said he had written to ACPSEM requesting information in this regard and produced emails to that effect at the hearing. The most recent email to ACPSEM produced was dated 6 August 2018. The applicant said he had been told that the appeal was finalised, however he still requested further information. He said he had travelled to India in the period from 5 August 2018 to 4 October 2018, and on his return had not received any reply. The applicant said he was pursuing his enquiry with ACPSEM and asked the Tribunal for a short period to enable him to follow-up his enquiry. The Tribunal granted that request.

22. The applicant said he had been working as a part-time stable hand for a racing stable near the University in Wollongong. He also had a part-time role as a researcher in the Physics Department at the University of Wollongong, which paid him $539 a month. He said the university would not offer him a full-time position until his visa application was determined. The applicant was asked if the university was intending to sponsor him for a position, and the applicant stated that he did not know but intended to make that enquiry and respond to the Tribunal about any sponsorship or nomination.

23. The applicant agreed that he was currently not working as a Medical Physicist. The applicant thought it might be difficult to obtain such employment without a visa and therefore difficult for him to complete the required additional 9 months of work experience to meet the qualification as determined by ACPSEM.

24. The Tribunal informed the applicant that it was concerned he was not working in the nominated occupation and appeared to have little prospects in that regard. The applicant did not disagree with that summary and felt that his opportunity for employment as a Medical Physicist might be better in India, than currently in Australia. The applicant thought it might be possible for him to return to India to obtain the relevant period of 9 months’ work experience in the specified occupation, and then reapply, as proposed by the ACPSEM appeal panel.

25. Following the discussion with the applicant at the hearing, the Tribunal finds it is satisfied that the applicant does not meet the criterion for assessment of the nominated skilled occupation during the last 3 years by a relevant assessing authority, as suitable for the nominated occupation of Physicist (Medical Physicist only) ANZSCO 234914.

    Post-hearing submission

26. On 7 November 2018, the applicant provided a further submission to the Tribunal.

27. The applicant had made enquiries about a further sponsorship and whether any employer was willing to provide a nomination. The applicant said “I’m trying to get an offer from medical physics research related employer all around Australia and New Zealand too”. The applicant attached a copy of a current job application made by him to Robinson Research Institute, and a second attachment acknowledging his application for another position as junior physics/optics devices engineer. The applicant did not provide information of a current nomination or employment, which might provide him the necessary experience to reapply for assessment, or any further review by ACPSEM.

28. The Tribunal finds that the applicant is not working as a Physicist (Medical Physicist only). The Tribunal further finds that there are no reasonable prospects of employment of the applicant to meet the skill assessment over the next 9 months, and there are no outstanding applications for nomination or sponsorship for that role, and no further review of the present negative assessment underway by ACPSEM.

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

30. 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.

    DECISION

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

    Alan McMurran
    Member