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1003261 [2012] MRTA  1316  (17 May 2012)

Last Updated: 25 May 2012

1003261  [2012] MRTA 1316  (17 May 2012)


DECISION RECORD


APPLICANTS: Mrs Anjalee Batra
Mr Bharat Batra
Mr Ryan Batra

MRT CASE NUMBER: 1003261

DIAC REFERENCE(S): BCC2009/314749

TRIBUNAL MEMBER: Belinda Wells

DATE: 17 May 2012

PLACE OF DECISION: Adelaide

DECISION: The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.


STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
  2. The applicants applied to the Department of Immigration and Citizenship for visas on 27 August 2009. The delegate decided to refuse to grant the visas on 20 April 2010 and notified the applicants of the decision and their review rights.
  3. The delegate refused to grant the visas on the basis that the first named applicant (“the first applicant”) did not satisfy cl.485.221 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) because she was not satisfied that the skills for the first applicant’s nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation.
  4. The applicants applied to the Tribunal on 4 May 2010 for review of the delegate’s decisions.
  5. The Tribunal finds that the delegate’s decisions are MRT-reviewable decisions under s.338(2) of the Act. The Tribunal finds that the applicants have made a valid application for review under s.347 of the Act.

RELEVANT LAW

  1. The Skilled (Provisional) (Class VC) visa permits graduates of Australian educational institutions and people who have held certain temporary skilled visas to reside in Australia temporarily in order to obtain skills and qualifications required for permanent General Skilled Migration visas. At the time the visa application was lodged, the Skilled (Provisional) (Class VC) visa class contained the following subclasses: Subclass 485 (Skilled – Graduate) and Subclass 487 (Skilled – Regional Sponsored).
  2. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 485 visa.

Criteria in issue

  1. The criteria for a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Regulations. Relevantly to this matter, a primary criterion to be met is cl.485.221.
  2. Clause 485.221 requires that the applicant’s skills have been assessed as suitable for the nominated skilled occupation. If the assessment was on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification must be obtained as a result of a studying a registered course.

Defined terms

  1. ‘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. The relevant instrument for this purpose is Legislative Instrument IMMI 09/031.
  2. ‘Relevant assessing authority’ means a person or body specified under r.2.26B of the Regulations: r.1.03. Regulation 2.26B provides that the Minister may specify, by an instrument in writing, a person or body as the relevant assessing authority for: (a) a skilled occupation; and (b) one or more countries; for the purposes of an application for a skills assessment made by a resident of one of those countries. The relevant instrument for this purpose is Legislative Instrument IMMI 09/031.
  3. Regulation 1.03 defines ‘registered course’ as a ‘course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’.

CLAIMS AND EVIDENCE

  1. The Tribunal has before it the Department’s and Tribunal’s files relating to the applicants.
  2. The applicants applied for the visas on 27 August 2009. The first applicant stated in her visa application form that her nominated occupation was “Teacher – Secondary School Teacher”, that the assessing authority was Teaching Australia, and that the date of the skills assessment was 26 August 2009.
  3. The applicants subsequently provided the following documents to the Department in support of their application:
  4. The applicants’ representative requested and was given several extensions of time to enable his client to undertake a further IELTS test and obtain a positive skills assessment for her nominated skilled occupation. On 16 February 2010 the Department wrote to the applicants’ representative to inform her that applicants cannot change their nominated skilled occupation after applying for their visa, and requesting the representative to advise the Department within 7 days as to whether the applicants wished to withdraw their visa application.
  5. The delegate refused to grant the visa on the basis that the first applicant did not satisfy cl.485.221 because the first applicant did not provide a skills assessment for the nominated occupation of Secondary School teacher (ASCO code 2413-11).
  6. The applicants applied to the Tribunal on 4 May 2010 for review of the delegate’s decision. The applicants were not initially represented in relation to the review, but after the hearing they appointed a registered migration agent to assist them.
  7. The applicants did not provide any documents or submissions to the Tribunal prior to the hearing.

The Tribunal hearing

  1. The applicants appeared before the Tribunal on 7 November 2011 to give evidence and present arguments.
  2. The first applicant said that in her visa application form she had nominated the skilled occupation of Teacher – Secondary School Teacher (ASCO code 2413-11). She said that she has not provided a positive skills assessment for this skilled occupation. She said that she would like to explain to the Tribunal why she has not been able to provide the skills assessment.
  3. The first applicant said that in Australia she has undertaken full-time studies for a Masters of Education degree, and she started this in 2007 and completed it in 2009.
  4. The first applicant said that within a month of lodging her visa application the case officer requested her to provide relevant documents. She said that she told her case officer that she needed some time in which to obtain the documents. She said that she was given until March to obtain the documents.
  5. The first applicant said that she made contact with the skills assessment authority, and they told her that she needed to obtain 7.0 in each category of an IELTS test in order to obtain a positive skills assessment. She said that she studied hard and tried to obtain this. She said that she obtained 7.0 in each category except listening.
  6. The first applicant said that whilst she was attempting to obtain the necessary IELTS test report, her friend told her that in addition to obtaining the IELTS test report, she would need to provide evidence that she had undertaken more than 45 days of teaching practice in one year, or one year of teaching experience in the past 3 years.
  7. The first applicant said that in February 2010 she contacted the skills assessment authority about this, and the person there told her that this was correct and that they had forgotten to tell her about this additional requirement. The first applicant handed the following documents to the Tribunal:

“As per our telephone conversation this afternoon, I have .. looked at your file.

As you have completed less than 45 days of supervised teaching practice as part of your degree of bachelor of education, you will need to submit evidence of at least one year of full-time employment as a teacher in the 3 years prior to the submission of your application. The employment references submitted do not adequately meet this requirement so you will need to provide additional evidence of employment.

I would like to apologise for not requesting this additional information earlier. It was an oversight on my part.”

  1. The first applicant said that during her first degree she obtained 35 days of teaching practice, rather than 45 days. She said that the skills assessment authority told her that she therefore had to show that she had been teaching for one year out of the past three years.
  2. The first applicant said that she has three and a half years teaching experience, as she worked as a teacher in India from 1 July 2002 until January 2007. She said that on 8 January 2007 she had a baby and from February to June 2007 she was on maternity leave so that she could care for the baby. She said that in July 2007 she came to Australia and commenced her studies and she studied until 2009. The first applicant said that as a result she has not been able to meet the requirement of teaching for at least one year during the past three years.
  3. The first applicant said that during 2010 her son fell down the stairs and was badly injured and in hospital for 14 days. She said that the doctor told them that this accident had put pressure on her son’s heart, and that he would need an operation. She said that she was so upset about this that she did not pursue the skills assessment issue further with Teaching Australia.
  4. The first applicant said that she has applied to undertake a Graduate Diploma in Education at the University of Adelaide, commencing in February 2012, but she is not sure whether she will be able to obtain a visa which will allow her to do that.
  5. The Tribunal told the first applicant that a person cannot change their nominated skilled occupation after they have applied for the visa, and that the delegate’s decision says this. The first applicant said that she understood this, and that the reason that she provided the other skills assessment was because her degree had already been assessed.
  6. The first applicant said that the applicants have not been nominated by a State or Territory government agency, or a Regional Certifying Body. She said that they have not been sponsored by an eligible relative.
  7. The first applicant said that she may be able to obtain a positive skills assessment if she explains the whole situation, including her three and a half years teaching experience, to the skills assessment authority. She said that teaching is her passion, and she really wants to be able to teach in Australia not just for her own sake but also for her family’s sake as they have been through a lot.
  8. The Tribunal said that it strongly recommends that the applicants obtain advice about their options from a registered migration agent.
  9. The Tribunal said that it would allow the first applicant a period of four weeks to provide a positive skills assessment for her nominated skilled occupation. The Tribunal said that the first applicant should advise the Tribunal prior to the expiration of the four weeks if she had decided that she would not be able to provide a positive skills assessment.
  10. The Tribunal said that if the first applicant wanted to request an extension of time in which to provide a positive skills assessment she would need to make an extension request prior to the expiration of the four weeks, and she would need to explain to the Tribunal why she wanted an extension of time. The Tribunal said that if, after four weeks, it had not heard from the applicants it would proceed to make a decision.
  11. On 2 December 2012 the Tribunal received a statutory declaration from the first applicant, a letter from the applicant’s representative, and various documents including a letter from Bell Toll Public High School stating that the first applicant worked as a teacher in that school from 1 July 2002 to 31 January 2006 and is a sincere, efficient and hardworking teacher.
  12. In her letter the representative stated that the first applicant has re-submitted to AITSL an application for assessment of her skills, and that she has been informed by AITSL that they are taking about ten weeks to provide a skills assessment. The representative requested the Tribunal to grant an extension of 14 weeks to allow the first applicant to obtain the skills assessment from AITSL.
  13. The Tribunal decided to allow the first applicant a further 14 weeks in which to provide a new skills assessment, and it communicated its decision to the applicants’ representative.
  14. On 9 March 2012 the Tribunal received a letter from the applicants’ representative stating that there appears to be no prospect that AITSL will provide the first applicant with a favourable assessment of her skill as a secondary school teacher, as despite her significant past experience working as a teacher she has not undertaken 45 days of practical teaching as part of a course of study.
  15. In her letter the applicants’ representative states that:
  16. On 9 March 2012 the Tribunal also received from the applicants a letter from Charles Darwin University dated 11 January 2012 offering the first applicant a place in the Graduate Diploma in Teaching and Learning program, to commence on 27 February 2012 and to conclude on 30 November 2012; and an email from Darwin University to the first applicant dated 28 February 2012 confirming that it had received payment of her first semester fees.
  17. The Tribunal did not receive any further documentary evidence from the applicants prior to making its decision.

FINDINGS AND REASONS

  1. The issue in the present case is whether at time of decision the first applicant’s skills have been assessed as suitable for the nominated skilled occupation by the relevant assessing authority.
  2. On the evidence before the Tribunal, the first applicant nominated the occupation of Teacher - Secondary School Teacher (ASCO code 2413-11) which is a skilled occupation specified in IMMI 09/031. For that occupation, the relevant assessing authority specified in IMMI 09/031 is National Office of Overseas Skills Recognition/Teaching Australia (“NOOSR/TA”).
  3. The Tribunal finds that the first applicant provided a skills assessment from VETASSESS for the skilled occupation of Teacher – Education Officer (ASCO Code 2493-11), but not for the nominated skilled occupation of Teacher - Secondary School Teacher (ASCO code 2413-11).
  4. The Tribunal conducted the hearing in this matter on 7 November 2011 and gave the applicants a period of four weeks, and then a further period of 14 weeks, to obtain and provide an appropriate skills assessment. The applicants did not provide a new skills assessment within the extended period and, as described above, on 9 March 2012 the applicants wrote to the Tribunal requesting a further extension of time until 30 August 2012.
  5. The Tribunal has decided not to provide the applicants with further time in which to provide a new skills assessment. The Tribunal has made this decision after taking various matters into account.
  6. First, the Tribunal does not consider that the amount of extra time sought is reasonable, having regard to the statutory direction that the Tribunal conduct its review in a manner which “is fair, just, economical, informal and quick”[1], and having regard to the amount of time that the applicant has already had to provide an appropriate skills assessment. The Tribunal finds that since at least 12 February 2010 the first applicant has been aware that she would need to satisfy additional requirements in order to obtain an appropriate skills assessment. The Tribunal accepts the first applicant’s evidence that her son had a bad accident during 2010 and that she was so upset that she did not pursue the skills assessment issue further at that time, but the first applicant did not provide any medical or other evidence as to why she could not have taken steps to obtain the skills assessment during 2011. The Tribunal has already given the applicants a lengthy period of time in which to provide a new skills assessment, allowing the applicants a period of four weeks after the hearing, and then a further period of 14 weeks, to provide the skills assessment.
  7. Secondly, the Tribunal finds that that the applicants have not provided any documentary evidence indicating that the first applicant would be in a position to provide a new skills assessment by 30 August 2012. The Tribunal finds that the applicants provided evidence that the first applicant had been offered a place in a Graduate Diploma course which runs until 30 November 2012, and did not provide any evidence indicating that the first applicant would be in a position to provide a new skills assessment by 30 August 2012.

Changing the nominated skilled occupation

  1. An applicant cannot change the skilled occupation nominated in the visa application, whether by submitting a Form 1023 or by any other means. The reasons are set out below.
  2. In the General Skilled Migration (GSM) statutory scheme, there is no provision for changing the nominated occupation (unlike the previous skilled regime see reg.2.27B prior to 1 September 2007). The statutory scheme contemplates a single nominated skilled occupation for all purposes in relation to a Class VC (Skilled (Provisional)) visa application. This is evident from the language, context and structure of the Regulations.

Statutory scheme

  1. The statutory scheme requires a person seeking a visa to remain in Australia to make a valid application for a visa of a particular class: ss.45 and 46. Only a valid application for a visa must be considered and the visa can only be granted if, amongst other things, the criteria prescribed by the Regulations are satisfied: ss.47 and 65.
  2. Item 1229 of Schedule 1 of the Regulations sets out the requirements for a valid application for a Class VC visa which lists 485 as a subclass within this class. The language of Item 1229 throughout refers to an applicant nominating “a skilled occupation” (emphasis added). An applicant seeking to meet the requirements of a Subclass 485 visa must nominate a skilled occupation in the application for which at least 50 points are available (cl.485.211 and Item 1229(4)(b)(ii)).
  3. In Part 485 of Schedule 2, which sets out the criteria to be satisfied, the language changes to “the applicant’s nominated skilled occupation” and “the nominated skilled occupation” (emphasis added): see cl.485.213, 485.214, 485.221. There is no definition in Part 485 or elsewhere under the Regulations as to what the expression, “the nominated occupation”, means. In using the definite article “the” as opposed to the indefinite article “a” in Schedule 1, this suggests that the criteria are referring to a particular nominated skilled occupation. Having regard to the legislative context and the statutory scheme, “the nominated skilled occupation” referred to in the Schedule 2 criteria is the skilled occupation the applicant had nominated when making the application for the visa under Schedule 1 of the Regulations.
  4. Therefore, in making an application for a Subclass 485 visa, an applicant must nominate a skilled occupation in the application for which at least 50 points are available. Once nominated, this is the relevant occupation in relation to which the visa criteria are assessed.
  5. In the case of GSM visas, there is no legislative provision for changing the occupation after the visa application is made. Under the previous skilled migration scheme, it was effectively possible to change an occupation if the applicant was invited to do so by the Minister if the circumstances under reg.2.27B were met. The applicant was then taken to have nominated that occupation in his or her visa application. Regulation 2.27B does not apply to GSM visas and there is no other legislative provision.
  6. The Tribunal finds, for the reasons set out above, that the first applicant’s nominated skilled occupation remains the occupation of Teacher - Secondary School Teacher (ASCO code 2413-11). The Tribunal finds that the first applicant’s skills have not been assessed as suitable for the nominated skilled occupation by the relevant assessing authority, NOOSR/TA. Therefore, the first applicant does not satisfy the requirements of cl.485.221(1).
  7. Given the above findings, the Tribunal finds that the first applicant does not meet the requirements of cl.485.221.
  8. The Tribunal also considered whether the first applicant meets the criteria for the grant of a Subclass 487 (Skilled - Regional Sponsored) visa.
  9. The Tribunal finds that the first applicant has not provided any evidence to indicate that she is nominated by a State or Territory government agency or by a Regional Certifying body.
  10. The Tribunal therefore finds that the first applicant does not meet the requirements of cl.487.213(2) and thus the requirement in cl.487.213(1), and she therefore she does not satisfy the requirements of cl.487.213.

Conclusions

  1. Given the findings above, the Tribunal affirms the decision under review.

DECISION

  1. The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Belinda Wells 17 May 2012
Member

[1] See NBMB v MIAC [2008] FCA 149; (2008) 100 ALD 118 at [14] and Bandi v MIAC [2010] FMCA 365 (Smith FM, 21 May 2010) at [32]. See also Rahman v MIAC [2012] FMCA 334 (Raphael FM, 12 April 2012) where the Court found the Tribunal did not err in deciding to refuse the applicant further time to submit a skills assessment in circumstances where the Tribunal had already granted very lengthy periods of extension. The Court commented that the discretion in s.363(1)(b) to adjourn the review from time to time must be exercised consistently with the terms and objects of the legislation, and found that the Tribunal was entitled to consider that in order to comply with the requirement in s.353(1) to make the decision quickly, which is as important as the other requirements in that provision, there would have to be an end to the continued extensions of time.

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