1504312 (Migration) - [2016] AATA 3254

1504312 (Migration) [2016] AATA 3254 (17 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Nadeesha Thushari Perera Hettiarachchige Don
Mr Udara Dananjaya Subasinghe Subasinghe Mudiyanselage
CASE NUMBER:  1504312
DIBP REFERENCE(S):  BCC2014/2085623
MEMBER:Mary Cameron
DATE:17 February 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 17 February 2016 at 1:56pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 March 2015 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 24 August 2014. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The first named visa applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.223 and cl.485.224 of Schedule 2 to the Regulations. These criteria are concerned with the applicant’s skills in relation to her nominated skilled occupation. The issue in the present case is whether the applicant meets those requirements.
The delegate refused the visas because the first named applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because at the time of the delegate’s decision she had not provided a suitable skills assessment for migration purposes.
The applicants appeared before the Tribunal on 9 February 2016 to give evidence and present arguments.
The Tribunal noted that according to her visa application form the first named applicant (hereafter “the applicant”) had answered ‘yes’ to having applied to a relevant assessing authority for an assessment of her skills for her nominated skilled occupation. The Tribunal noted that the visa application form records the date of the skills assessment as being 7 August 2014 and provides the reference/receipt number 10224670.
The Tribunal asked the applicant whether, when she applied for the visa, she had provided any evidence with the application that she had applied for a skills assessment. The applicant responded that the application was done by her migration agent, and she had given him all of the documents beforehand and asked him to let her know if anything was missing. Her migration agent told her that it was all fine and he had lodged the application, but afterwards he told her that the evidence of her skills assessment had not been included. He also told her that she did not get a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 3254
Decision Date: 17 February 2016

CaseChat Overview and Summary

In the case of 1504312 (Migration), the Tribunal upheld the delegate's decision to deny the applicants their visas under Subclass 485 in the Graduate Work stream. The applicants sought to satisfy the primary criteria for the visa, which include cl.485.223 and 485.224 of Schedule 2 to the Regulations, related to the applicants' skills in relation to their nominated skilled occupation of accountant. The Tribunal found that the applicants did not meet the criteria because the visa application was not accompanied by evidence that the applicants had applied for a skills assessment from the relevant assessing authority, Certified Practicing Accountants of Australia (CPA).

The central legal issue before the Tribunal was whether the applicants had satisfied the primary criteria for the visa, specifically cl.485.223, which requires that the visa application be accompanied by evidence of an application for a skills assessment by the relevant authority. The Tribunal concluded that the evidence did not support the finding that the applicants had provided the required evidence with their visa application. The Tribunal also found that the applicants' skills had not been assessed by a relevant assessing authority as suitable for their nominated occupation within the last three years. Consequently, the Tribunal considered that granting the applicants additional time to provide a new skills assessment would not assist in the review.

The Tribunal's reasoning was that the applicants failed to provide evidence, separate from the application form itself, that they had applied for a skills assessment from CPA. The Tribunal considered the applicants' oral evidence and the delegate's decision record, which indicated that the Department received the required evidence only after the visa application had been made. The Tribunal found that the applicants did not satisfy cl.485.223 and, as a result, did not meet the primary criteria for the visa. Furthermore, the secondary applicant did not meet the secondary criteria, cl.485.311, as the primary applicant did not satisfy the primary criteria.

The Tribunal affirmed the decision not to grant the applicants Skilled (Provisional) (Class VC) visas, finding that the applicants did not meet the primary or secondary criteria for a Subclass 485 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.223 and 485.224 of Schedule 2 to the Regulations. These criteria are concerned with the applicant’s skills in relation to their nominated skilled occupation. The issue in the present case is whether the applicant meets those requirements.Has the applicant applied for a relevant skills assessment? Clause 485.223 requires that when the application was made it was accompanied by evidence that the applicant had applied for assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority. There is clear authority that that the expression “accompanied by evidence” is to be interpreted as meaning something separate from information contained in the application form itself: Panchal v MIAC [2012] FMCA 562 (Scarlett FM, 29 June 2012) at [85] (while this case considered cl.485.216 the reasoning appears equally applicable to other identically worded criteria and criteria relating to arrangements which also require that the ‘application is accompanied by evidence’.) On the evidence before the Tribunal the applicant nominated the occupation of accountant which is a specified skilled occupation. For that occupation the relevant assessing authority is Certified Practicing Accountants of Australia (CPA). In the present case the applicant provided information as set out above in her visa application form indicating that she had applied to for a skills assessment. However as she told the Tribunal at hearing she was subsequently advised by her migration agent that evidence that she had applied for a skills assessment had not been provided with the visa application. According to the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant, it was not until 2 January 2015 that the Department received an email from the applicant attaching documents which included a Skills Assessment outcome dated 27 August 2014 from Certified Practicing Accountants of Australia with reference number 10224670, and which recorded the applicant as “not academically suitable for migration”. The evidence before the Tribunal does not support a finding the visa application was accompanied by evidence, separate from the application form itself that the applicant had applied to CPA for an assessment of her skills for the nominated occupation. Based on the evidence before it the Tribunal finds that when the visa application was made, it was not accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority. The applicant therefore does not satisfy cl.485.223. Based on the evidence provided, including the applicant’s oral evidence at the Tribunal hearing, the Tribunal further finds that at the time of the visa application the skills of the applicant had not been assessed by a relevant assessing authority as suitable for the applicant’s nominated skilled occupation during the last three years. The Tribunal has considered the applicant’s request for additional time in order to provide a new skills assessment. However because the Tribunal has found that the applicant does not satisfy cl.485.223 the Tribunal considers that the applicant will not be assisted in the review by the benefit of the requested postponement of the Tribunal’s decision.

Decision

Reasons for decision

There is no claim or any evidence before the Tribunal that the remaining applicant meets the primary criteria for the grant of the visa. In addition, to meet clause 485.311, the secondary applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 485 visa. As the applicant does not satisfy the primary criteria for a Subclass 485 visa, or any other subclass, the Tribunal finds that the secondary applicant also does not satisfy clause 485.311 and, therefore, the criteria for a Subclass 485 visa, or any other subclass.DECISION The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.Mary CameronMember

Ratio Decidendi

Legal Principle Established

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