Poclin (Migration)

[2017] AATA 546

Poclin (Migration) [2017] AATA 546 (5 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaime Poclin

CASE NUMBER:  1603121

DIBP REFERENCE(S):  BCC20152445716

MEMBER:Katie Malyon

DATE:5 April 2017

PLACE OF DECISION:  Sydney

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

Statement made on 05 April 2017 at 4:45 pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Skills assessment – Construction Project Manager – Vocational Education and Training Assessment Services – Negative skills assessment outcome – Unable to obtain relevant work experience – No full skills assessment

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.224(1), cl 485.223, r 1.15I, r 2.26B, IMMI 16/060

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 25 February 2016 to refuse to grant the applicant, Mr Jaime Poclin, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Poclin applied for the visa on 25 February 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).

3. The delegate refused the visa because Mr Poclin did not satisfy cl.485.224(1) of Schedule 2 to the Regulations because he did not provide a favourable skills assessment for his nominated occupation of Construction Project Manager ANZSCO 133111. A copy of the delegate’s decision was provide to the Tribunal.

4. Mr Poclin appeared before the Tribunal on 5 April 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. Mr Poclin 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 an applicant’s skills in relation to their nominated skilled occupation. The issue in the present case is whether Mr Poclin meets those requirements.

   Had the applicant applied for a relevant skills assessment?

7. Clause 485.223 of Schedule 2 of the Regulations requires that when the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of their skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’. The term ‘skilled occupation’ has the meaning given by r.1.15I of the Regulations. A skilled occupation in relation to a person is defined to mean an occupation of a kind:

   (a)  that is specified by the Minister in an instrument in writing to be a skilled occupation; and,

   (b)  if a number of points are specified in the instrument as being available - for which the number of points are available; and,

   (c)  that is applicable to the person in accordance with the specification of the occupation.

8. The expression ‘relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations. The relevant instrument in this case is Legislative Instrument IMMI 16/060.

9. On the evidence before the Tribunal, Mr Poclin nominated the occupation of Construction Project Manager ANZSCO 133111 in his Subclass 485 visa application.  This is a specified skilled occupation: IMMI 16/060.  For that occupation, the relevant assessing authority specified is Vocational Education and Training Assessment Services (VETASSESS). 

10. It is not in dispute that Mr Poclin provided the Department at the time he lodged his Subclass 485 visa application with a receipt number from VETASSESS confirming that he had applied for a skills assessment from that organisation in respect of his nominated occupation. As the visa application, when made by Mr Poclin on 24 August 2015, was accompanied by evidence of an application for a skills assessment of his nominated skilled occupation by a relevant assessing authority the Tribunal concurs with the delegate and finds that Mr Poclin satisfies the requirements of cl.485.223 of Schedule 2 of the Regulations.

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

11. Clause 485.224(1) of Schedule 2 of the Regulations 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) of Schedule 2 of the Regulations.

12. The Department’s file confirms that, on 7 December 2015, Mr Poclin provided a negative skill assessment outcome from VETASSESS dated 6 November 2015 for the occupation of Construction Project Manager.  The Tribunal notes the covering letter from VETASSESS states that, once Mr Poclin has completed one year of employment at an appropriate skill level in a field highly relevant to his nominated occupation, he would be eligible to apply to VETASSESS for a full skills assessment of his nominated occupation of Construction Project Manager to support an application for permanent residency. 

13. Mr Poclin told the Tribunal that, since graduating with a Master of Business and Project Management from Asia Pacific International College, he has been unable to find work in a field relevant to his nominated occupation.  Initially, he worked as a cleaner before starting work as a swimming pool operator in October 2016.  As a result, he has not been able to apply to VETASSESS for a new assessment of his skills.

14. On the evidence before the Tribunal, the applicant nominated the occupation of Construction Project Manager ANZSCO 133111 which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is VETASSESS. No evidence was produced to the Tribunal that confirms Mr Poclin’s skills for the nominated skilled occupation have been assessed, during the last 3 years, by VETASSESS as suitable for his nominated occupation of Construction Project Manager. Accordingly, the requirements of cl.485.224 of Schedule 2 of the Regulations are not met.

15. On the basis of the above findings, the applicant does not satisfy the criteria for grant of a Subclass 485 visa.  As this is the only relevant subclass in this case, the decision under review must be affirmed.

    DECISION

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

    Katie Malyon

    
    Member