VILJOEN (Migration)

[2020] AATA 2597

VILJOEN (Migration) [2020] AATA 2597 (19 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr SAREL JACOB VILJOEN

Mrs Mareza Viljoen

Miss Haylie Viljoen

Master Sion Viljoen

CASE NUMBER:  1913125

HOME AFFAIRS REFERENCE(S):          BCC2019/310996

MEMBER:Stavros Georgiadis

DATE:19 June 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

·cl.482.212(4) of Schedule 2 to the Regulations.

Statement made on 20 June 2020 at 5:42pm

CATCHWORDS
MIGRATION – Temporary Skills Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – evidence of necessary skills to perform tasks of nominated position – processing time for VETASSESS skills assessment – assessment completed shortly after department’s refusal decision – certificate provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.75, Schedule 2, cl 482.212

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 Home Affairs on 6 May 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 February 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Diesel Motor Mechanic (ANZSCO 321212).

3. The delegate in this case refused to grant the visas on the basis that the visa applicant did not satisfy the requirements of cl.482.212(4) of Schedule 2 to the Regulations because the applicant had not provided evidence that he has the necessary skills to perform the tasks of the nominated position in the manner required by the Minister of having undertaken a skills assessment.

4. The applicants appeared before the Tribunal on 19 June 2020 to give evidence and present arguments.

5. The applicants were represented in relation to the review by a registered migration agent.

6. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant has, for the purposes of cl.482.212(4), demonstrated that he has the skills necessary to perform the occupation in the manner specified by the Minister - a skills assessment.

   Applicant’s skills, qualifications and employment background

8. Clause 482.212(3) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.482.212(4), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.

9. The background to this matter is that Mr Viljoen’s Subclass 482 (Class GK) visa application was lodged 1 February 2019, following the lodgement (and subsequent approval) of a nomination in the occupation of Diesel Motor Mechanic (ANZSCO 321212). The nomination application was made by the standard business sponsor employer, JD Kalmar & JL Valentine.

10. The applicant provided detailed written submissions dated 18 June 2020 together with other material in support of the application which (in part) set out as follows:

    … “We refer to the Notice of Decision of visa refusal issued on 06 May 2019. The visa was refused in the absence of a finalised positive skills assessment as Diesel Motor Mechanic, the assessing officer was therefore not satisfied at the time Mr Viljoen had the skills to perform the nominated occupation. The visa was refused as the applicant was unable to meet Sch 2 cl 482.212.

    Nomination validity

    The nomination by Mr Viljoen’s employer, J.D KALMAR AND J.L VALENTINE was approved, it is understood that this nomination is still valid and provides for approval of Mr Viljoen’s Subclass 482 visa application should it be remit to the Department for further processing. While Mr Viljoen’s visa application was refused, the application is yet to be finally determined until the outcome of this review hearing. As a result, we understand that the nomination is still valid.

    The regulations are:

    Reg 2.75(2) An approval of a nomination ceases on the earliest of:

    (b) if a visa application made by the nominee on the basis of the nomination is finally
    determined or withdrawn after 12 months after the day on which the nomination is
    approved—the day on which the visa application is finally determined or withdrawn; and

    ba) if a visa application made by the nominee on the basis of the nomination is finally
    determined or withdrawn after 12 months after the day on which the nomination is
    approved—the day on which the visa application is finally determined or withdrawn; and

    (c) the day on which the nominee is granted a Subclass 482 (Temporary Skill
    Shortage) visa; and

    (d) if the nomination is of an occupation for a Subclass 482 (Temporary Skill Shortage)
    visa in the Short-term stream or the Medium-term stream—the nomination end day,
    unless, on the nomination end day:
    (i) the person is a standard business sponsor; or
    (ii) there is an application for approval as a standard business sponsor made by
    the person before the sponsorship end day in relation to which a decision has not
    been made under subsection 140E(1) of the Act; and

    (e) the day on which an application mentioned in subparagraph (d)(ii) is refused; and

    (f) if:
    (i) the nomination is of an occupation for a Subclass 482 (Temporary Skill
    Shortage) visa in the Short-term stream or the Medium-term stream; and
    (ii) the person’s approval as a standard business sponsor is cancelled under
    subsection 140M(1) of the Act;
    the day on which the person’s approval as a standard business sponsor is cancelled;
    and

    (g) if the approval of the nomination is given to a party to a work agreement (other
    than a Minister) and the nomination is of an occupation for a Subclass 482 (Temporary
    Skill Shortage) visa in the Labour Agreement stream—the day on which the work
    agreement ceases.

    Under s5(9), an application is finally determined when:
    • a decision that has been made in respect of that application is not, or is no longer,
    subject to review by the AAT under Part 5 or Part 7 of the Migration Act;
    or
    • a decision that has been made in respect of that application was subject to review
    by the AAT under Part 5 or Part 7 of the Migration Act but the period within which
    such a review could be instituted has ended without a review having been instituted;
    or
    • in relation to an application for a protection visa by an excluded fast track review
    applicant - a decision has been made in respect of the application.

    We submit the nomination lodged – was approved and under Reg 2.75 (2)(b) and [as] the visa application was lodged within the time period, however, has not been finally determined.

    Home Affairs’ Visa Decision Record

    The TSS482 visa application was submitted on 1st February 2019. Under paragraph 1240(3)(g), certain TSS primary visa applicants, in all visa streams, are required to
    demonstrate that they have commenced a skills assessment process, or provide a skills
    assessment where the relevant assessing authority has assessed the applicant’s skills as
    suitable for the occupation within the required time period (details are outlined in the
    relevant legislative instrument).

    SCH: 482.212

    (1) Each of the following applies:
    (a) the nomination identified in the application has been approved under section 140GB of the Act;
    (b) the person who made the nomination was an approved work sponsor at the time
    the nomination was approved;
    (c) the approval of the nomination has not ceased under regulation 2.75.

    (2) Both of the following apply:
    (a) the applicant’s intention to perform the nominated occupation is genuine;
    (b) the position associated with the nominated occupation is genuine.

    (3) The applicant has the skills, qualifications and employment background that the
    Minister considers necessary to perform the tasks of the nominated occupation.

    (4) If the Minister requires the applicant to demonstrate that he or she has the skills that
    are necessary to perform the tasks of the nominated occupation, the applicant
    demonstrates that he or she has those skills in the manner specified by the Minister.

    The TSS visa application form asks primary applicants to provide a reference number for their skills assessment where they have commenced or completed an assessment. Mr Viljoen is [a] South African passport holder and therefore under 1240(3)(g) the VETASSESS skills assessment was lodged - confirmation of receipt was submitted. Mr Viljoen submitted a skills assessment on the 25th January 2019. This was receipted by VETASSES on the 25th January 2020. REF: Appendix 2.

    The assessing officer acknowledges that as per Sch1 item 1240 (3) (g) the applicant provided evidence of having made an application for a skills assessment with Vetassess. The visa application declared the application for the skills assessment was lodged however yet to be finalised where it is identified that the applicant falls into the class of persons specified, provision of a valid reference number for a skills assessment that they have commenced or completed, is considered sufficient to meet paragraph 1240(3)(g) and processing of the application. On this basis, the assessing officer accepts that a valid application for the Subclass 482 visa was made.

    As it is common for skills assessing processes to be delayed beyond an applicant’s control for various reasons (including technical interview scheduling based on interviewer availability).

    On 04 February 2019 an initial RFI for the visa application was provided for Mr VILJOEN’s
    skills assessment. This provided until 04 March for the completed skills assessment to be
    uploaded to the application. This timeframe did not reflect the Vetassess quoted processing
    times of approximately 3 months which is well beyond an applicant’s control.

    On 05 March 2019 after a request for further time, Mr Viljoen was provided until 30 April 2019 to provide his completed skills assessment. VETASSESS completed Stage 1 on or around 12 March 2019. On 01 May 2019 Mr Viljoen completed Stage 2 of his skills assessment, the technical interview, and then on 13 May 2019 he received confirmation of a successful skills assessment from VETASSESS. Mr Viljoen was poised to be able to provide this positive result and therefore meet Sch 2 cl 482.212, however his visa application was refused on 06 May 2019. REF: Appendix 3, 4, 5.

    We submit that Mr VILJOEN’s Subclass 482 visa application was refused without providing
    sufficient time to provide evidence of his positive skills assessment from an external provider- VETASSESS. As per Sch2 cl 482.212 Mr VILJOEN was required to provide evidence of a positive skills assessment before the application could be finalised. As his occupation requires both an assessment of qualification (Stage 1) and technical interview (Stage 2) with Vetassess this process can often be delayed in awaiting a technical interview date. We submit that the process for obtaining a finalised skills assessment was out of the applicant’s control, Mr Viljoen would have been able to meet Sch2 cl.482.212 and his visa could have been approved.

    SCH 482.23 Criteria for Medium-term stream

    482.231 - The applicant has worked in the nominated occupation or a related field for
    at least 2 years. Mr Viljoen is a highly skilled and experience tradesperson – he completed an apprenticeship and Diploma in South Africa. Mr Viljoen has continued to work in his profession as a qualified Technician since 7 January 2000. As such, we submit that Mr VILJOEN has the sufficient skill to perform his occupation and has the relevant evidence of a positive skills assessment to meet the relevant criteria. REF: Appendix 6.

    English Criteria

    482.232 (1) The applicant satisfies any language test requirements specified for the
    applicant by the Minister in a legislative instrument made for the purposes of this
    subclause.

    (2) If the Minister requires the applicant to demonstrate his or her English language
    proficiency, the applicant demonstrates his or her English language proficiency in the
    manner specified by the Minister. The IELTS requirements for the occupation stream are the following: (a) an overall band score of at least 5.0; and (b) a score of at least 4.5 for each test component of the IELTS.

    We therefore submit meeting the requirements for English - Mr Viljoen’s ILETS test dated 7
    July 2018 – the English scores respectively are: Listening 6, Reading 5, Writing 6, Speaking
    8 with an overall band score of 6.5.

    SCH 482.3 Secondary Criteria

    At the time of the visa refusal Mr Viljoen held a Subclass 400 visa with the employer that was due to expire 01 July 2019 (he entered Australia on 01 January 2019 with a 6 month stay period). As such, the applicant still held a substantive visa at the time of the refusal. Mr Viljoen and his family are now subsequently currently s48 barred due to the refusal. The Covid19 pandemic and current border closures have added further complexity to the situation as the family are unable to travel offshore to submit a new TSS visa application and return to Australia readily.

    Character

    Mr Viljoen and his spouse have supplied Police clearances from South Africa – We therefore
    submit they are upstanding citizens with no Criminal records. They shall be able to submit
    Australian Federal Police clearances upon request. Mr Viljoen and his family will meet the criteria for visa.

    Summary

    In summary, we submit that Mr Viljoen has the requisite skills to perform his nominated
    occupation. During the process of application of his Subclass 482 visa he was following the
    appropriate process to obtain a skills assessment to provide as evidence of such skills. He
    made a valid application as per Sch 1 item 1240 (g), and it was the processing timeframe for
    his skills assessment with VETASSESS which was beyond of his control.  Had the skills assessment been finalised his visa application would have been approved. …”

    ________________________________________________________________________

11. The oral evidence is that the nomination application by the applicant’s employer, JD KALMAR & JL VALENTINE was lodged in January 2019.  The application for the Subclass 482 visas was made on 1 February 2019, within 12 months of lodgement.  The Tribunal has proceeded on the basis that the nomination remains valid at the time of visa application as the nomination does not cease until the earliest of a number of factors including, under r.2.75(2)(b), the day on which the visa application is finally determined or withdrawn - being the date of this decision.

12. The Tribunal has had regard to the applicant’s oral and written submissions and evidence presented in respect of the skills, qualifications and employment background necessary to perform the tasks, as well as evidence of demonstrated skills necessary to perform the nominated occupation.

    The Tribunal finds that the applicant has extensive employment experience as a Diesel Motor Mechanic following completion of his formal technical qualifications attained in this field in 2019. The applicant advised the Tribunal that his technical qualifications include a National Certificate ‘N2 MECHANICAL’ awarded by SEDIBERG COLLEGE VEREENIGING, South Africa after the applicant completed his motor mechanic apprenticeship over a period of 2.5 years to 1998. The Tribunal is also satisfied that the applicant has extensive work experience as a Diesel Motor Mechanic that spans over 20 years of work undertaken both overseas (South Africa) and in Australia as evidenced from his Curriculum Vitae and the work certificates provided.

13. The Tribunal has considered the evidence of the skills assessments undertaken on behalf of Trades Recognition Australia by Vetassess.  The Tribunal finds that both Stage 1 (qualifications and experience) and Stage 2 (technical interview) of the skills assessment have been completed as demonstrated by the completion certificates provided and referred to in the above submissions and attachments.  The Tribunal notes the following advice added at the end of the skills assessment certificate issued on 13 May 2019 in respect of the applicant:

    VETASSESS has been contracted by the Commonwealth of Australia, represented by the Department of Education and Training (the Department), through Trades Recognition Australia (TRA) to conduct skills assessments on its behalf. As VETASSESS has been contracted by the Commonwealth of Australia for the purposes of conducting skills assessments, that assessment will be considered as assessment by TRA for the purposes of the Migration Regulations 1994.

14. The Tribunal places weight on the skills assessment certificate from Vetassess dated 13 May 2019 that certifies as ‘successful’ the applicant’s skill assessment for the nominated occupation of Diesel Motor Mechanic (ANZSCO 321212).

15. Accordingly, the Tribunal is satisfied that:

    ·For the purposes of cl.482.212(4), the applicant has demonstrated in the manner required by the Minister that he has the skills necessary to perform the tasks of the occupation.

16. For these reasons the applicant meets the requirements of cl.482.212(4).

17. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visas in respect of all applicants in the combined application claimed as members of the same family unit as the primary applicant.

    DECISION

18. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

    ·cl.482.212(4) of Schedule 2 to the Regulations.

    Stavros Georgiadis
    Member