Roxas (Migration)

[2017] AATA 1126

Roxas (Migration) [2017] AATA 1126 (7 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charlie Roxas

CASE NUMBER:  1622373

DIBP REFERENCE(S):  BCC2016/2875182

MEMBER:Alison Mercer

DATE:7 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 07 July 2017 at 11:38am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate work stream – Welfare Centre Manager – Positive skills assessment

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, r 1.15I, r 2.26B, 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 Immigration on 13 December 2016 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 30 August 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 visa because the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations. The delegate found that the applicant stated in his online visa application that he had applied to Vetassess on 30 August 2016 for a skills assessment for his nominated occupation of Welfare Centre Manager but failed to provide any evidence that he had received a positive skills assessment. Accordingly, there was no evidence that his skills had been assessed in the last 3 years by a relevant assessing authority as suitable for his nominated occupation.

4. The Tribunal received a review application from the applicant on 26 December 2016. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Giovanni Cristiano, as his representative and authorised recipient for correspondence for the purposes of the review.

5. On 12 April 2017, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 10 May 2017.  They were asked to provide any documents in support of the case a week prior to the hearing.

6. The applicant appeared before the Tribunal on 10 May 2017 to give evidence and present arguments. The Tribunal also received submissions from the applicant’s agent. The applicant said that he had applied to Vetassess for a skills assessment on 30 August 2016 but had not yet received the outcome. When asked why not, the applicant said that he had been asked to provide more evidence about employment experience but had not been able to do so.  The applicant’s agent told the Tribunal that none of his other clients who had made similar applications to Vetassess had been asked to do this, and that when the information was not provided, Vetassess ceased its consideration of the application but without making a decision. The Tribunal indicated that the onus was on the applicant and his agent to demonstrate that the applicant had a positive skills assessment from Vetassess for his nominated occupation, and that it would defer its decision for 1 week after the hearing (to 17 May 2017) for them to make any additional submissions on the issue, after which time it would make its decision on the available evidence.   

7. On 18 May 2017, the applicant’s agent advised the Tribunal that Vetassess had reopened the applicant’s file and would shortly make a decision as he and the applicant were uploading the necessary information in the next 24 hours.

8. On 8 June 2017, the Tribunal wrote to the applicant via his agent seeking an update on the status of the skills assessment, noting that it planned to make a decision on the review application in the week beginning 12 June 2017.  They were asked to provide any new material as soon as possible.

9. On 12 June 2017, the applicant’s agent advised the Tribunal that he had checked the status of the skills assessment application and had requested that the applicant upload the photographs requested by Vetassess, and he therefore expected a positive decision within a few days.

10. On 22 June 2017, the Tribunal sent an email to the applicant’s agent asking him to provide the outcome of the skills assessment as soon as possible.  The applicant’s agent advised a Tribunal officer by telephone on the same date that he had sent an email to Vetassess and that he should have the skills assessment in the next 24 to 48 hours.

11. On 4 July 2017, the Tribunal again wrote to the applicant via his agent advising that the Tribunal intended to make its decision on 7 July 2017, and that they should provide the applicant’s skills assessment as soon as possible.  The Tribunal noted that if Vetassess was still assessing the application, the applicant should provide written confirmation of this from Vetassess, together with an estimate of when it would be determined.

12. On 6 July 2017, the Tribunal received an email from the applicant’s agent attaching a skills assessment for the applicant for the occupation of Welfare Centre Worker issued on 23 June 2017 by Vetassess. The skills assessment states that the outcome is negative as the applicant does not have the required relevant work experience.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The applicant is seeking to satisfy the primary criteria for a subclass 485 visa in the Graduate Work stream which includes 485.224 of Schedule 2 to the Regulations. This criterion is 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?

15. 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).

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

17. ‘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 instruments is Legislative Instrument IMMI 16/059 (as preserved by the transitional provisions in 17/072 as of 1 July 2017).

18. On the evidence before the Tribunal, the applicant nominated the occupation of Welfare Centre Manager (ANZSCO code 134214), which is a specified skilled occupation. For that occupation, one of the relevant assessing authorities specified is Vetassess (the other is the Australian Community Workers Association, or ACWA).

19. The Tribunal finds that Vetassess assessed the applicant’s skills as not suitable for his nominated occupation of Welfare Centre Manager on 23 June 2017.

20. Given the above, the Tribunal finds that the requirements of cl.485.224 are not met.

21. As a result, 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

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

    Alison Mercer
    Member