VU to conduct skills assessments for Visa 457

[Sheelagh Blanckenberg]

http://www.vu.edu.au/news/vu-to-conduct-skills-assessments-for-visa-457

Victoria University has been successful in acquiring the tender to conduct skills assessments for temporary working visas. The Australian Government, through Trades Recognition Australia, has approved Victoria University to conduct formal skills assessments for temporary working visa applicants from nominated countries and trades.

Commonly known as the 457 Visa, VU will conduct skills assessments for first class welders, fitters, metal fabricators, motor mechanics, cooks and chefs from China, India, Fiji and The Philippines.

For this project, Victoria University has agreed to work with Education Training International (ETI) and TAFEWA in a consortium arrangement so that VU can provide services throughout Australia and Internationally. ETI has many strong relationships internationally that VU will be working with to make this project successful and it will have the integrity that the Department of Education, Employment and Workplace relations (DEEWR) and Department of Immigration and Citizenship (DIAC) require.

“It is our intention to develop relationships with these partners to broaden our opportunities internationally, which will increase VU’s profile and market share in training”, said Vicki Sherry, Business Development Manager, Technical and Trades Innovation.

From 1 July 2009 until 30 September 2009 the first phase of the three year tender commenced to provide skills assessments in five trades and four countries for Victoria University. It is DEEWR’s intention to extend the agreement from October 1 2009 to provide services of an unknown amount of other trades and countries and then the agreement will be fully extended in January 2010 to cover 37 trades and 10 countries.

The selected group of RTOs will also be used as a working group to monitor and improve the assessment process during the period of the tender so the process can be streamlined for DEEWR, DIAC, RTOs and the applicants to ensure positive outcomes.

For further information contact 457skillsassess@vu.edu.au .

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[Robert K Chelliah]

For a valid application under SC 175, 178 , 485 etc the applicant has to evidence that the person is employed in a skilled oocupation for a legislated time frame and such skilled occupation to be drawn from the gazetted SOL list. This is one of the most contentitious issue and the MRT is littered with many cases that has failed t0 meet reg 1.03 which defines "skilled occupation". ,.many applications are rejected on the basis the department officer does not consider the applicant is working in a skilled occupation and reuses the visa application. This is more so in occupations which are not easily classified, and where applicants find it diffcult to equate their occupation to a particular job title in the SOL. I have just completed one more MRT appeal on behalf of anothe Agent. I have cited one or two previous MRTA cases to make the point as claimed below. Agents and membebers of public may find these points below useful to bear in mind.

Robert K Chelliah
rkc@austmigration.com.sg
Tel 61 08 92464088

....an old case, Singh & Salindera v MIEA [1993] FCA 451; [1993] 117 `ALR 687 (1993) 44FCR 495 to claim that it is not necessary for the visa applicant be performing the skilled tasks for the whole time. Here the court ruled “it is not necessary to show that the person will exercise the high skill associated with the formal training and experience during the whole working day. There are many occupations in which a highly skilled person spends a good deal of time doing routine work that a lesser skilled person could carry out equally well; but where it is essential to have a particular form of training in order to meet the exigencies of the job as they occur from time to time , perhaps only for a relatively small portion of the time.If it is necessary for the person to have the requisite skills in order to occupy the position, this is enough to satisfy the regulation. It is not necessary show that the skills are called upon for a major proportion of the working day.” (emphasis added by us)

In another MRTA case, Arshad 071699768 [2008] MRTA the member observed that a visa applicant can be performing the tasks and duties of more than one skilled occupation.

Further as relevance, in the case of 0803180 [2009] MRTA 1490 (10.August 2009) the Tribunal Member determined that “Delegates are required to determine whether or not the tasks nominated by the employer match the tasks of an occupation listed in the legislative instrument. While in some cases the title of the nominated occupation will provide a good indication that there is likely to be a match, it is the tasks and not the job title, which must be the determinative factor.Officers should refer to ASCO, to compare the duty statement provided with the nomination against the task descriptions provided in the “occupation” level of ASCO. The ASCO task descriptions specify a generally representative list of the primary tasks usually performed in the occupation. (Para 75.3).

[Silent Observer]

Robert

Thanks for this information.

Often decisions on visa applications can seem quite clear cut from an outsiders viewpoint.

In reality, as DIAC officers have the ability to make subjective assumptions as part of their assessment process, an erroneous finding by DIAC can often be challenged on appeal (if this is applicable to the visa of course).

[Robert K Chelliah]

Hi Silent Observer,

DIAC officers as delegates of the Minsiter are bound by Adminsitrative principles of procedural fairness in making subjective decsions. I have often used the principle of this Adminsitrative Law when I prepare an MRT appeal. I cite accountabilty in the making of discretionary subjective decsions by the case officers..

In the FCA in the case of The Minister of State for Immigration, Local Government and Ethnic Affairs and: Gamdur Singh Dhillon and Marcelle Suzanne Maree Lievense Dhillon No.WAG 26 of 1989 FED No.200 Adminsitrative Law –Presiding Judges Northrop, Wilcox and French observed that the (any) visa applicant “subjected to a statutory decision is entitled to have the case determined by reference to found facts, not suspicion or conflict of evidence.” And goes on to say that “It cannot be too strongly emphasised that a primary responsibility of a statutory decision maker is to reach firm conclusions about those facts which are relevant to his or her decision. If the decision maker is subsequently called upon to state his or her findings, he or she should do so in clear and unambiguous terms; not being reticent in expressing findings adverse to particular people, if in fact they were the actual findings reached at the time of the decision. Contrary to the submission put by counsel for the Minister, it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts.” (Para 10).

This is a good case to remember where the delgate does not spell out clearly the grounds for visa refusal.


Robert K Chelliah
Migration Agent since 1992.
rkc@austmigration.com.sg