6006 Migration Law: Analysis of Subclass 494 Visa Refusal and ART Appeal

In the given scenario, Fabio’s subclass 494 (Skilled Employer Sponsored Regional) visa application in the Employer stream is refused. The applicant is offshore at present, while he received the refusal notification. The reason for the refusal, is that further evidence of Fabio work experience was requested, however that email was missed and the applicant didn’t reply to that requirement. Now is this decision is a reviewable decision.

A decision other than a decision that is made under section 501, to refuse to grant a non-citizen a visa is a reviewable migration decision if the visa could be granted while the non-citizen is in the migration zone, and the non-citizen made the application for the visa while in the Migration Zone.[1] For the subclass 494, the circumstance for the grant of the visa, the applicant may be in or outside of Australia.[2] The decision of the refusal was not made when the non-citizen was in immigration clearance, or had been refused immigration clearance.[3] So this doesn’t apply to Fabio as well. In case is the visa is a temporary visa of a kind that is prescribed under regulation 4.02, the non-citizen at the time of the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulation.[4] The prescribed visas that are mentioned under regulation 4.02, reviewable migration decisions who may apply for review does include the subclass 494(Skilled Employer sponsored regional Visa)[5] Also apart from this, as per the section 338(9), a decision that is prescribed for the purpose of this section is a reviewable migration decision.[6] A decision to refuse to grant a subclass 494 Skilled employer Sponsored regional Visa to a non-citizen who is outside Australia at the time and the non-citizen did not seek to satisfy the primary criteria for the grant of the visa, and the grant of the visa was refused because the non-citizen did not satisfy the secondary criteria for the grant of the visa.[7] As per the given information, the department requested Fabio for further work evidence, that could be regarding his overseas work experience or as stated under primary criteria of employer sponsored.  Unless the nominated occupation is an occupation specified by Minister in an Instrument, the applicant must be employed to work in the nominated occupation, and the applicant is employed to work in a position.[8] So it could have been any of this further evidence that would have been requested, which the Fabio missed out through email.

Question 2

An application for review of a reviewable migration decision may only be made by the person who is affected by that decision. As stated, for a decision covered by subsection 338(9)—the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection[9]. So in the given case, Fabio would be the one to apply for REVIEW with ART as he is the person directly affected by the decision to refuse his subclass 494 visa application. The sponsor (employer), does not have independent review rights for the refusal, however they can provide supporting documents.

Question 3 – 347

When the Minister grants or refused to grant a visa, he or she is to notify the applicant for the decision in the prescribed way.[10] The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B.[11] If the notification was received by email, than the applicant is believe to receive the notification by the end of the day on which the document is transmitted.[12]

An application may be made to the ART for review of a reviewable migration decision, the application must include the prescribed information, accompanied by the prescribed documents and also accompanied by any fees if any.[13] Since the applicant is offshore, and not in immigration detention, he will have 28 days after the day the applicant is notified of the decision.[14] If Fabio received the notification yesterday, than it mean he will have further 27 days to apply for review with ART.

As a registered migration agent, my advice to Fabio would be based on the overall scenario, context and possibilities. Fabio is an Italian national who is offshore at present but has a valid student visa till November 2025. Fabio has 4 years of work experience in the relevant industry working in the prestigious fashion house in Italy. Fabio applied for a subclass 494 Skilled Employer Sponsored Regional (Provisional) visa in the Employer Sponsored Stream, however the department requested for further evidence of work experience which was missed by Fabio. Hence the visa is refused for not meeting the primary criteria.

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The first thing that Fabio should and must consider to do is try to come back to Australia as soon as possible. As he received the notification of visa refusal through email, he will have 28 days to apply for the ART review.[15] Though he can apply to the ART, while being offshore as well, but coming back to Australia would be recommended for his peace of mind. Once he is back, than within 28 days he can apply to the ART for a review of his visa refusal, as the decision he has received is a reviewable migration decision.[16] The fees that he will be looking at for applying for the ART review would be $3580, as mentioned under the regulation.[17] Since he is from a wealthy background, he won’t be eligible for 50% concession due to financial hardship.[18]

Submission

The submission for ART Review application will cover the applicant background, his eligibility criteria for meeting the primary criteria for subclass 494 visa, and other evidence to support his application.

For the submission of the ART Review, it will be provided evidence that the applicant is meeting the following criteria.

The nomination identified in the application has been approved under section 140GB of the act.[19] As per the 140GB, minister to approve nominations for a person who has applied to be an approved work sponsor may nominate an applicant or proposed applicant for a visa, in relation to the applicant proposed occupation.[20] This mean that the applicant already have an approved work sponsor who is willing to sponsor Fabio for the required occupation. It is important to note that the nomination is not ceased yet.[21]

It is also important to show that the applicant intention to person the nominated occupation is genuine and the position associated with the nominated occupation is genuine as well.[22] This can be shown by providing the fact that Fabio did a bachelor of Fashion Design from Italy and he also worked in the relevant field for 4 years. Besides he is currently doing Master of Fashion Design from RMIT, a reputable university in Australia that is well known and popular for their degree in fashion. The applicant age has to be taken into consideration, if Fabio is under the age of 45, he should be able to meet the age requirement for the subclass 494 Age requirement as well.[23]

The main requirement that Fabio is meeting for the subclass of 494 Visa is that he has the relevant work experience of 4 years, that is exceeding the work experience required for this visa that is 3 years.[24] In the case of Fabio, he has 4 years of work experience for working in relevant field for one of the prestigious fashion houses in Italy. Fabio will also have to show that he has competent English, so that he will be meeting the English requirement as well.[25] To meet the English language requirement, Fabio can provide Ielts test result with at least 6 in each of the four components.[26]

At the same time, it is important for Fabio to provide the evidence that his previous employment in Italy is working in the nominated occupation or performing tasks at the same skill level in a closely related occupation.[27] the applicant must be able to demonstrate that the tasks of the occupation they performed during the required three years are the same as, or closely related to, the tasks of the nominated occupation. Where the applicant has not worked in the nominated occupation but has indicated that they have been employed in a related occupation, decision makers should consider whether the tasks undertaken in the relevant position are: the same or closely related to those of the nominated occupation as outlined in ANZSCO; and are at the same skill level and with at least the same level of responsibility. [28]

It will be recommended for Fabio to get the experience letter from his Italian Employer for whom he worked for 4 years. Along with the experience letter he can also get the pay slips to show that he worked for the employer for a period of 4 years. Most importantly, it will be important for Fabio to get the skill assessment for the nominated occupation as well. As applicant seeking to satisfy the primary criteria for the grant of subclass 494 (Skilled Empployer sponsored Regional Provisional Visa), in the employer stream must declare in the application that the relevant assessing authority for the nominated occupation has assessed the applicants skill as suitable for that occupation and its not for subclass 485.[29] For the occupation of Fashion Designer, the relevant assessing Authority would be VETASSESS as per the legislation.[30] As per the Anzsco list, the code against which the assessment has to be done would be 232311.[31]

Application for Review with the ART would have following points.

Matter: Review of Subclass 494 Visa Refusal – Fabio

Grounds for Review:

The sponsoring employer is an emerging Fashion House based in Regional Australia

Employer as already been approved as a standard business sponsor

Position has been approved by the Department

Employer has been waiting since December 2014

Regional Businesses face critical skill shortages

Applicant Profile:

Bachelor of Fashion Design (Milan)

4 years of work experience at a Prestigious Fashion house

Genuine Intention to work for the Regional Business

Refusal based on Procedural Issue not on Substantive Grounds:

Refusal of visa is based on failure to respond to request for evidence

Applicant missed out on the email while travelling overseas

Evidence requested by the Department can be provided easily

Not a case of Lacking qualification, skills or experience

Based on the above grounds and points mentioned, it is recommended to Fabio to apply for the ART for review of his visa refusal decision and provide as man documents as possible.

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Question 5

In case if Fabio visa for subclass 494 is refused while he is in Australia, there will be two different scenarios. If his student visa is valid or not. As per the given scenario, if Fabio is in Australia he has a valid student visa till 1^st November 2025. If his visa application for subclass 494 is refused being on shore, he will still be on student visa. Student visa usually has a condition of 8104, that states that the visa holder should not engage in work in Australia for more than 48 hours a fortnight.[32] Besides the limitation of work hours for student visa holders, the visa holder will also have a mandatory visa condition of 8202.[33] As for this condition, the holder of the visa must be enrolled in a full time registered course, and must maintain enrolment in the registered course.[34] So Fabio will be required to keep on studying and attending his university and course that he is enrolled in and, apart from that he cannot work for more than 48 hours fortnight. Fabio could not legally stop his studies and start working full time for the employer immediately following the refusal of his subclass 494 visa application. In case if he does that, he will be in breach of his visa conditions. The only time he can work full time would be during the period when their course is not in session.[35]

Fabio Subclass 500 visa was granted to enable him to undertake a full time course of study (Master of Fashion Design at RMIT), as evidenced by his enrolment condition 8202 mandates that the holder must maintain full time enrolment in the course.[36] In case if Fabio breaches his condition, he is likely to have his visa cancel under section 116. As section 116 states that the Minister may cancel a visa of a person, if the minister believe that the holder has not complied substantially.[37]

Suggestion:

Instead of stopping his studies and start working full time, the recommendation for Fabio would be to complete his Master degree that he is currently enrolled in. On completion of his Master degree from RMIT in Fashion Designing, Fabio can apply for subclass 485. For applying the subclass 485, Fabio can be in or outside of Australia.[38] One key criteria to consider for the eligibility for subclass 485, is that the applicant should not be older than 35 years of age.[39] For the post higher education work stream, Fabio would require to meet the following criteria as well. (1B)   The applicant, in the period of 6 months immediately before the day the application was made, completed one or more degrees for award by Australian educational institutions as a result of a course or courses:

(a)    that are registered courses; and

(b)    that were completed in a total of at least 16 calendar months; and

(c)    that were completed as a result of a total of at least 2 academic years study; and

(d)    for which all instruction was conducted in English; and

(e)    that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.[40]

On successful grant of 485 visa, the duration of the visa would be for 3 years as Fabio would apply on the basis of his Master degree. The first visa granted to Post-Study Work stream primary applicants are to have effect (for the number of years from the date of grant or the date of first entry if the applicant is outside Australia) master’s degree: 3 years.[41]

Following this pathway, this will give Fabio 3 years to work full time, that he can easily get as only few months are left on his completion of studies. Based on this, he can work for the same employer in the field that he is interested in and at the same time will open more option for his for further visa like Subclass 482, 190 and 491 as well.

The occupation of Fashion designer is under the short-term occupation list.[42] The short-term skill list, can be use for subclass 491 (Skilled Work Regional) and 190 (Skilled Nominated) Visa.[43]

With this pathway, Fabio won’t breach any of his visa condition, and in few months time he can start working full time in the same job and occupation for which he is interested in and has an employer to sponsor as well. That will also give him more time, to increase his points for subclass 491 and 190 as working in the regional area for the nominated occupation will earn him more points based on which he will have strong chances to get a grant of 490 and 191 visa, in case if the option of subclass 494 doesn’t work out.

Bibliography

1. Migration Act 1958 (Cth)
2. Migration Regulation 1994 (Cth)
3. Department of Home Affairs (Cth) Migration 19/051 Specification of Occupation and Relevant Assessing Authority Part 2(7)(3)(4)
4. Department of Home Affairs (Cth) Pam Condition 8105 Work Limitation
5. Department of Home Affairs (Cth) Pam 3 3.4.4.2 Employment in the Nominated Occupation at the relevant Skill level

[1] Migration Act 1958 (Cth) s338(2)(a)(b)

[2] Migration Act 1958 (Cth) Sch 2 494.411

[3] Migration Act 1958 (Cth) s338(2)(c)(i)(ii)

[4] Migration Act 1958 (Cth) s338(2)(d)(i)

[5] Migration Regulations 1994 (Cth) Reg 4.02(1A)(la)

[6] Migration Act 1958 (Cth) s338(9)

[7] Migration Regulations 1994 (Cth) Reg 4.02(4)(l)(iv)

[8] Migration Act 1958 (Cth) Sch 2 494.222(a)(b)(i)(ii)

[9] Migration Act 1958 (Cth) 347A(1)(d)

[10] Migration Act 1958 (Cth) s66(1)

[11] Migration Regulations 1994 (Cth) Reg 2.16(3)

[12] Migration Act 1958 (Cth) s494C(5)

[13] Migration Act 1958 (Cth) 347(1)(2)(a)(b)(c)

[14] Migration Act 1958 (Cth) 347(3)(b)

[15] Migration Act 1958 (Cth) 347(3)(b)

[16] Migration Act 1958 (Cth) s338(9)

[17] Migration Regulations 1994 (Cth) Reg 4.13(1)

[18] Migration Regulations 1994 (Cth) Reg 4.13(4)

[19] Migration Act 1958 (Cth) Sch 2 494.213(1)(a)

[20] Migration Act 1958 (Cth) s140GB(1)(a)

[21] Migration Act 1958 (Cth) Sch 2 494.213(1)(c)

[22] Migration Act 1958 (Cth) Sch 2 494.213(2)(a)(b)

[23] Migration Act 1958 (Cth) Sch 2 494.223(1)(a)

[24] Migration Act 1958 (Cth) Sch 2 494.225(1)

[25] Migration Act 1958 (Cth) Sch 2 494.226(1)(a)

[26] Migration Legislation Lin IMMI 25/016

[27] Department of Home Affairs (Cth) Pam 3.4.4 Employment history

[28] Department of Home Affairs (Cth) Pam 3 3.4.4.2 Employment in the Nominated Occupation at the relevant Skill level

[29] Migration Act 1958 (Cth) Sch 1 item 1242(5)(a)(b)

[30] Department of Home Affairs (Cth) Migration 19/260 7 Regional Occupation List

[31] Department of Home Affairs (Cth) Migration 19/219 Occupations for Subclass 494 Visa

[32] Migration Act 1958 (Cth) s8 8104(1)

[33] Migration Act 1958 (Cth) sch 2 500.611(1)(a)

[34] Migration Act 1958 (Cth) Sch 8 8202(2)(a)(b)

[35] Department of Home Affairs (Cth) Pam Condition 8105 Work Limitation

[36] Migration Act 1958 (Cth) Sch 8 8202

[37] Migration Act 1958 (Cth) s116(1)b)

[38] Migration Act 1958 (Cth) Sch 1 item 1229(3)f)

[39] Migration Act 1958 (Cth) Sch 1 item 1229(4)(b)(ii)

[40] Migration Act 1958 (Cth) sch 2 485.231(1B)(a)(b)(c)(d)(e)

[41] Department of Home Affairs (Cth) Pam First Subclass 485 Visa grant in the Post study work Stream

[42] Department of Home Affairs (Cth) Migration 19/051 Specification of Occupation and Relevant Assessing Authority

[43] Department of Home Affairs (Cth) Migration 19/051 Specification of Occupation and Relevant Assessing Authority Part 2(7)(3)(4)