SUBRAMANI (Migration)

[2017] AATA 1603

SUBRAMANI (Migration) [2017] AATA 1603 (13 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sheela SUBRAMANI

CASE NUMBER:  1704199

DIBP REFERENCE(S):  BCC2016/3181385

MEMBER:Wan Shum

DATE:13 September 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 13 September 2017 at 2:39pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Primary Health Organisation Manager – Unsuccessful skills assessment – Applicant provided further evidence of course completion

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.224, r.1.15I, r.1.03, r.2.26B

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 February 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 485 visa on 25 September 2016. 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). It includes a criterion that the applicant’s skills in relation to their nominated skilled occupation have been assessed as suitable.

3. In this case, the applicant did not provide evidence that her skills had been assessed as suitable to the Immigration department and the delegate refused the visa because the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations.

4. The applicant has sought review of that decision and was represented in relation to the review by a registered migration agent.

5. The applicant participated in a hearing on 5 June 2017. This hearing was conducted by telephone. The applicant confirmed at the hearing that she had been unsuccessful when the initial application for a skills assessment was lodged. She had then applied for review in January 2017 and this was also unsuccessful. At the time of the hearing she was awaiting the outcome of an appeal, which her representative advised had been lodged in the first week of May 2017. The Tribunal (differently constituted) was informed that the timeframe for appeal was between 12 to 16 weeks, and a request was made for the Tribunal not to proceed to a decision until the outcome was obtained. The Tribunal indicated that it was prepared to give the applicant until 29 June 2017 to provide the decision on the appeal. On 28 June 2017, the Tribunal received a request for additional time to extend the time. The representative was advised that the request for an extension of time had been granted and the new due date was given of 27 July 2017. On 30 June 2017, the matter was constituted to this Tribunal. On 27 July 2017, the representative contacted the Tribunal to advise that the applicant had not received an outcome from the assessing body and that they were unable to provide the documents. The Tribunal requested evidence that the appeal was still outstanding and was provided with a screenshot confirming that it was still in progress. On this basis, the Tribunal agreed to a further extension and the representative was informed that the information was now due by 31 August 2017. No outcome has been received to date.

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 includes cl. 485.224 of Schedule 2 to the Regulations. Clause 485.224(1) requires the applicant’s skills to be assessed as suitable for his or her nominated skilled occupation. The issue in the present case is whether the applicant meets that requirement.

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 (as amended by IMMI 17/040).

9. On the material before the Tribunal, the applicant nominated the occupation of Primary Health Organisation Manager which is an occupation specified by the Minister. For that occupation, the relevant assessing authority is VETASSESS.

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

10. 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).

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

12. As set out in the delegate’s decision record, the applicant had applied for a skills assessment from VETASSESS on 26 August 2016, prior to lodging her application for the Subclass 485 visa. This assessment was unsuccessful. The applicant and her representative advised that she had sought a reassessment or review of her application on 10 January 2017. This was also unsuccessful. The representative then assisted the applicant with lodging an appeal on 10 May 2017. During the hearing, the applicant requested, and the Tribunal agreed to, allow some time to provide the outcome of the appeal. A further two requests were made to allow further time when the extended due date approached. The most recent due date was 31 August 2017, which is over 3.5 months since the appeal to VETASSESS was lodged. To date, the Tribunal has not been provided with any evidence that the applicant’s skills have been assessed as suitable for the occupation of Primary Health Organisation Manager. The applicant’s initial application and reassessment application had both been unsuccessful.

13. As the applicant has not provided evidence that she has been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation. Therefore the requirements of cl.485.224(1) are not met.

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

15. 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

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

    Wan Shum
    Member