1504664 (Migration)

[2015] AATA 3495

1504664 (Migration) [2015] AATA 3495 (15 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suranga Priyadarshana Aththidiyage

CASE NUMBER:  1504664

DIBP REFERENCE(S):  BCC2015/197984

MEMBER:Lisa Lo Piccolo

DATE:15 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Nominated (Permanent) (Class SN) visa.

Statement made on 15 October 2015 at 2:06pm

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 Immigration on 19 March 2015 to refuse to grant the visa applicant a Skilled Nominated (Permanent) Subclass 190 visa under s.65 of the Migration Act 1958 (the Act).  This is a point’s based visa designed for skilled applicants who submitted an expression of interest and received an invitation to apply for the visa.

2. The visa applicant applied for the visa on 19 January 2015. The delegate refused to grant the visa on the basis that the skills assessment validity period had expired.  A copy of the delegate’s decision was provided to the Tribunal by the applicant.

3. The applicant appeared before the Tribunal on 13 October 2015 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether at the time the applicant was invited to apply for the visa he had been assessed by the relevant assessing authority as having skills suitable to the applicant’s nominated occupation. 

2. The Skilled – Nominated (Permanent) (Class SN) subclass 190 visa is a permanent visa designed for skilled applicants who submit an expression of interest (EoI) in SkillSelect to the Department and who then receive an invitation to apply for this visa.

3. Applicants seeking to satisfy the primary criteria for subclass 190 must have been invited to apply for the visa. The applicant is required to achieve a specified qualifying score on a points assessment under Schedule 6D and to be nominated by a State or Territory government agency. Applicants will require evidence that at the time of the invitation to apply for the visa they had qualifications and English language of a prescribed standard. 

4. The criteria for a subclass 190 visa are set out in Schedule 2 to the Regulations. Relevantly to this matter, a primary criterion to be met is cl.190.212(1) which requires that, at the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation.

5. For visa applications made on or after 28 October 2013 as a result of an invitation to apply for the visa given on or after 28 October 2013, the assessment must not have been for a Subclass 485 (Temporary Graduate) visa.  For visa applications made on or after 1 July 2014, there are additional requirements relating to the currency of the assessment as at the time of invitation to apply for the visa. 

6. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations (r.1.03). ‘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 these purposes is Legislative Instrument IMMI 15/091.

7. On the evidence before the Tribunal, the applicant nominated the occupation of Mechanical Engineering Draftsperson which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Engineers Australia.

8. In the original visa application form, lodged online on 19 January 2015, the applicant answered “yes” to the question about whether or not he had applied to a relevant assessing authority for an assessment of his skills for his nominated skilled occupation.  He gave a date of “23 May 2011” of a skills assessment through Engineers Australia and provided the reference number “3899357”. 

9. On 19 February 2015, the Department wrote to the applicant and asked that he provide a skills assessment issued by the relevant skills assessment body and obtained prior to the date the applicant was invited to make the visa application that is not more than 3 years old at the time of the invitation to apply for the visa.

10. The delegate’s decision records that, on 14 March 2015, the applicant provided a skills assessment from Engineers Australia dated 20 February 2015. 

11. At the hearing the applicant said that he had been assessed through Engineers Australia on 23 May 2011.  The applicant told the Tribunal that he had included the relevant information including the reference number in the visa application form, and that he had applied for the skilled assessment on the date included in the application.  The visa application form states that the applicant applied for the visa on 15 January 2015.  A copy of the 23 May 2011 skills assessment was provided to the Tribunal (“first skills assessment”)(T.f.19). 

12. The applicant also told the Tribunal that he had applied for a subsequent assessment of his skills after receiving the letter dated 19 February 2015 from the Department.  He identified that the Engineers Australia letter includes the original application reference number “3899357”.  He also noted that the skills assessment is identical in form and content with exception of the date.  A copy of that skills assessment which was dated 20 February 2015 was provided to the Tribunal (“second skills assessment”)(T.f.20).

13. The applicant expressed his concern about the fairness in his case where he has been assessed as having the suitable skills both before the invitation to apply and after the date of the application, but falls foul of the clause because the first skills assessment had expired at the date of the application and the second skills assessment was provided too late. As discussed with the applicant at the hearing, there is no discretion in this matter.  The Tribunal’s role is to make a decision on the subclass 190 visa criteria, and it cannot consider any other factors which do not relate to the requirements for that visa.  The Tribunal acknowledges the factors raised by the applicant but has no legal power to take them into account in relation to the visa application under review.

14. Accordingly, in the present case, the first skills assessment, dated the 23 May 2011, does not meet cl. 190.212(1)(d) as at the time of invitation to apply for the visa on the
    1 December 2014, more than 3 years had passed since the date of the assessment.  Further, the second skills assessment, dated the 20 February 2015, does not meet
    cl. 190.212(1)(a) because at the time of invitation to apply for the visa on the 1 December 2014, the relevant assessing authority had not yet issued this assessment.  It follows that the applicant does not satisfy cl.190.212.

15. On the basis of the above findings, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a Subclass 190 visa.  As this is the only relevant subclass in this case, the decision under review will be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Skilled Nominated (Permanent) (Class SN) visa.

Lisa Lo Piccolo
Member