Solari (Migration)

[2018] AATA 3757

Solari (Migration) [2018] AATA 3757 (3 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jason Paul Solari

CASE NUMBER:  1613872

DIBP REFERENCE(S):  BCC2015/3508388

MEMBER:Ian Berry

DATE:3 July 2018

PLACE OF DECISION:  Brisbane

DECISION: The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 03 July 2018 at 9:31am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Minister of Religion – Negative Skills Assessment Outcome – Decision under review affirmed 

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.234

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 17 August 2016 to refuse to grant the visa applicant (Mr Solari) an Employer Nomination (Permanent) Subclass 186 visa (186 visa) under s.65 of the Migration Act 1958 (the Act).

2. Mr Solari applied to the Department of immigration for the 186 visa on 25 November 2015. The criteria for the grant of a 186 visa are set out in part 186 of Schedule 2 to the Migration Regulations 1994 (Regulations). The primary criteria must be satisfied by Mr Solari. An applicant seeking to satisfy the primary criteria must meet the ‘common criteria’, as well as the criterion for one of three alternative streams namely, the Direct Entry stream (Mr Solari’s nominated stream), the Temporary Residence Transition stream or the Agreement stream.

3. The delegate refused to grant the visa as the qualification listed in ANZSCO for the occupation of Minister of Religion (code 272211) required a skill level 1 which is a bachelor degree or higher qualification. ‘Vocational Education and Training Assessment Services’ (Vetassess) is the assessing authority specified by the Minister for Immigration to assess whether an applicant has the skills suitable for the nominated occupation. The delegate’s decision referenced clause 186.234 set out here:

   186.234

   (1)       At the time of application, subclause (2) or (3) applies.

   (2)        All of the following apply:

   (a)an assessing authority specified by the Minister in an instrument in writing for this subclause, as the assessing authority for the occupation, has assessed the applicant’s skills as suitable for the occupation;

   (aa)The assessment is not for a Subclass 485(Temporary Graduate) visa;

   (ab)if the assessment specifies a period during  which the assessment is valid, and the period does not end more than 3 years after the date of the assessment – the period has not ended;

   (ac)if paragraph (ab) does not apply – not more than 3 years have passed since the date of the assessment;

   (b)the applicant has been employed in the occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation.

   (3)the applicant is a person in a class of persons specified by the Minister in an instrument in writing for this subclause.

4. The Instrument in Writing referred to in clause 186.234(2)(a) is IMMI 15/092. This Instrument specifically provides for Vetassess as the assessing authority and the ANZSCO 6-digit code 272211 applying to a Minister of Religion, is prescribed as an occupation which subject to the skills assessment.

5. Mr Solari appeared before the Tribunal on 23 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Darcie de la Porte.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether, Mr Solari has the necessary qualifications and or experience to be granted a 186 visa.

   The legal position

8. Mr Solari provided as part of his submissions a Migration article from the Department of Immigration and Border Protection. It states in the 3^rd paragraph ‘From 1 July 2015, the occupation of Minister of Religion (ANZSCO 272211) will be not eligible for the Direct Entry Stream...of the Employer Nomination Scheme....under changes that came into effect on 1 July 2015, Ministers of Religion will no longer be exempt from the age, skill and English language requirements that were available under the Direct Entry ...Stream’.

9. From 1 July 2015, all 186 visa applicants must submit a skills assessment with a nominating assessing service. In Mr Solari’s case, his nominating assessing service was Vetassess. His Vetassess assessment was submitted and it was dated 1 October 2015.

10. Excerpts from this assessment are set out below:

    Vetassess-

    Required Skill Level:

    This occupation requires a qualification which is assessed as comparable to the educational level of an AQF Bachelor degree or higher degree, in a field highly relevant to the nominated occupation.

    In addition to this, applicants must have at least one year of post-qualification employment at an appropriate skill level completed in the last 5 years which is highly relevant to the nominated occupation. If employment is not Claims by Mr Solari 5 additional years of highly relevant employment are required.

    If the degree is not in a highly relevant field, 3 years of employment at an appropriate skill level completed in the last 5 years in a field which is highly relevant to the nominated occupation is required. This is reduced to 2 years if there is an additional qualification at least at AQF Diploma level in a highly relevant field.

    A positive assessment of both qualifications and employment is required for a positive Skills Assessment Outcome.

11. The “Skilled Migration Assessment” set out Mr Solari’s qualifications and employment details. The Skills Assessment Outcome was assessed as being negative. The skills assessment is able to be reassessed but this Tribunal does not have any evidence of that reassessment result.

    Submissions by Mr Solari

12. Mr Solari does not challenge the finding, but submits substantial supporting material which should persuade the Tribunal to exercise its discretion to overturn the delegates decision.

13. In support of his visa application, Mr Solari submitted testimonials from a substantial number of people as well as a petition and letters of support, including letters and from a Councillor and the Mayor of the Logan City Council. Mr Solari’s organisation, Youth with a Mission Pastors, as well as Pastors from other religious organisations who have had contact with Mr Solari, have also supported his visa application. In summary, all the testimonials give high praise to Mr Solari and commend his abilities in the field in which he works for in the time he has worked in Australia.

14. While he does not challenge the assessment result of Vetassess, Mr Solari suggests the timing of the legislation change has disadvantaged him, in that before 1 July 2015 he was not required to have an assessment of his skills. Supporting this submission he points to the approval of his nominator’s application have been decided before 1 July 2015. It should follow that such an approval should flow through to his 186 visa application.

15. Therefore, the Tribunal should exercise its discretion to give the 186 visa application a preference because of this timing discrepancy.

16. However, the Tribunal does not have that discretion as IMMI 15/092 clearly states that the Consolidated Sponsored Occupation List (CSOL) applies to the Direct Entry stream of the Employer Nomination Scheme.

17. Therefore, the Tribunal finds Mr Solari has not been able to comply with clause 186.234.

18. Therefore, the Tribunal finds the applicant has not complied with clause 186.234 of Part 186 of Schedule 2 to the Regulations.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Ian Berry
    Member