1505748 (Migration)

[2016] AATA 4399

1505748 (Migration) [2016] AATA 4399 (15 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sunil Gupta
Ms Soumya Gupta
Mr Aditya Sunil Gupta
Ms Zoe Gupta

CASE NUMBER:  1505748

DIBP REFERENCE(S):  BCC2014/3442692

MEMBER:Alison Mercer

DATE:15 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

Statement made on 15 September 2016 at 3:17pm

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 9 April 2015 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visas under s.65 of the Migration Act 1958 (the Act). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant (the applicant) was invited to apply for the visa on 28 November 2014 and applied for the visa on 15 December 2014 nominating the skilled occupation of Architect.

3. The criteria for the grant of a subclass 189 visa are set out in Part 189 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 who are applicants for the visa need satisfy only the secondary criteria.

4. In the present case, the delegate refused to grant the visas because the applicant did not satisfy cl.189.212.  This required that, at the time of the invitation to apply for the visa (a) the relevant assessing authority had assessed the applicant’s skills as suitable for his nominated skilled occupation, (b) that assessment was not for a subclass 485 (Skilled Graduate) visa, (c) if the assessment specified a period for which it was valid, that period had not ended, and (d) if (c) did not apply, then not more than 3 years had passed since the date of assessment.  The delegate noted that the applicant did not provide evidence of having a positive skills assessment as an Architect at the time he was invited to apply for the visa, but subsequently provided a positive skills assessment from the Architects’ Accreditation Council of Australia on 23 March 2015.  However, this was issued to him on 25 August 2010 and thus was deemed by cl.189.212(1)(d) to have expired 3 years from this date (that is, on 25 August 2013).  As this was prior to the date that the applicant was invited to apply for a visa, he could not meet cl.189.212(1) and thus could not meet cl.189.212 as a whole. The delegate also refused the visa applications of the second, third and fourth named applicants (the applicant’s wife and children) as they did not meet the secondary visa criteria to be members of the family unit of a person who met the primary visa criteria, and there was no evidence to suggest that they met the primary visa criteria in their own right.

5. The Tribunal received a review application from the applicants on 28 April 2015.  It was accompanied by a copy of the delegate’s decision.  It was also accompanied by a submission dated 27 April 2015 from the applicant, in which he stated that (in summary):

   ·he was a New Zealand citizen living permanently in Australia as the holder of a subclass 444 (Special Category) visa, and as such, he was eligible to sit for the Architectural Practice Examination (APE) in Australia;

   ·he had done so and was now registered as an Architect with the Architects Registration Board of Victoria;

   ·he had his architectural qualifications assessed by the AACA in August 2010 in order to apply for registration.  The opinion of the AACA was that the applicant’s qualification was academically equivalent to an accredited professional architectural qualification from a recognised school of Architecture in Australia, and that he could apply for the APE if he wished to be registered as an architect in any state or territory in Australia;

   ·his understanding of the purpose of having his qualifications assessed by the AACA for the subclass 189 visa was to ensure that, upon grant of the visa, he would be able to register and work as an Architect in Australia;

   ·since he was already registered as an Architect in Victoria, the applicant stated that his current registration certificate should suffice to meet the skill requirement for the subclass 189 visa;

   ·his was a unique case, where the subclass 189 visa applicant was already a registered Architect at the time of the invitation to apply for the visa, having already received a positive skills assessment in 2010 from AACA and subsequently passed the APE and becoming registered to practise in Victoria; and

   ·the Tribunal was requested to review the visa application in light of these facts.

6. The applicant enclosed a range of supporting documents, including:

   ·    letter dated 25 August 2010 from the Architects Accreditation Council of Australia (ACCA) to the applicant, advising him that the AACA had completed the assessment of his architectural qualification through the Review of Academic Equivalence process, as a result of which it was the AACA’s opinion that the applicant’s qualification was academically equivalent to an accredited professional architecture qualification from a recognised school of Architecture in Australia, which was the standard required for registration in Australia.  The applicant is advised that if he wishes to become registered as an architect in any state or territory of Australia, he would need to have this assessment accepted by the relevant registration authority. The applicant is also advised to be aware that before being eligible to apply for registration, he must have also completed a period of approved architectural practice and obtained a pass in the AACA Architectural Practice Exam (APE);

   ·    email to the applicant from the Architects Registration Board of Victoria (ARBV) dated 12 August 2011 advising that his log book and statement of experience (Part 1 of the APE) have been assessed as satisfactory and he can proceed to Part 2 (National Examination Paper, NEP);

   ·    email to the applicant from the ARBV dated 14 September 2011 advising that he had successfully completed Part 2/NEP of APE and could now proceed to Part 3 (Examination by Interview);

   ·    email to the applicant from the ARBV dated 25 October 2011 advising that he had successfully completed Part 3 of the APE and could apply for registration;

   ·    ARBV registration issued to the applicant on 8 December 2011.

7. On 17 August 2016, the Tribunal wrote to the applicants to invite them to a hearing on 2 September 2016.  They were asked to provide any further documents they wished to rely upon to the Tribunal within 7 days of the hearing.

8. On 22 August 2016, the Tribunal received confirmation that the applicant would attend the hearing.  He also provide a number of documents, some of which were duplicates of those he had already provided, but also including:

   ·a second clarification letter to the Tribunal dated 21 August 2016, in which he noted that there was no expiry date listed in his skills assessment from AACA.  Nor did the Department checklist sent with the ‘request for more information’ have any indication that the skills assessment could not be more than 3 years old – this was despite the fact that the checklist was very detailed and was customized for the applicant.  It did not specify that the skills assessment had to be less than 3 years old;

   ·the check list description for the skills assessment just stated ‘please provide a certified copy of your Skills Assessment issued by the relevant skills assessment body and obtained prior to the date that you were invited to make this visa application;’

   ·the applicant noted that he queried a few other details with the Department (and attached email correspondence to this effect) but received no indication that his skills assessment had to be less than 3 years old – if it had, he could have clarified this and/or obtained another certificate of validity from the AACA;

   ·the AACA issued a current letter of qualification assessment after the applicant’s visa was refused, which he also provided to the Tribunal; and

   ·at the time he made the subclass 189 visa application, he was a registered Architect and he naturally assumed that his qualification assessment was valid (as set out in his first letter to the Tribunal).

9. Also provided with the above were the following:

   ·request checklist and details sent to the applicant by the Department following lodgment of his subclass 189 visa application; and

   ·email correspondence from March 2015 between the applicant and the Department clarifying what was required in relation to police checks.

10. The applicant appeared before the Tribunal on 2 September 2016 to give evidence and present arguments.  The applicant confirmed the contents of his previous written submissions.  He told the Tribunal that he was currently working as a registered architect in Victoria. He was a senior project architect for the Billard Leece Partnership, a firm whose work included the new Royal Children’s Hospital in Melbourne.  He had been with this firm for 8 years.  The applicant confirmed that he could reside in Australia indefinitely as the holder of a subclass 444 (Special Category) visa, which he was entitled to hold as a New Zealand citizen, but stated that he and his family wanted to regularise their status and become permanent residents of Australia.  The applicant reiterated that to him, the point of cl.189.212(1) was to ensure that anyone granted a subclass 189 visa would have the skills to be employed immediately in Australia in their nominated occupation, and he had clearly demonstrated this by having obtained a skills assessment from AACA (albeit it was more than 3 years old at the time he applied for the visa) and being registered in Victoria as an architect and actually working in that field.  The Tribunal expressed sympathy for his arguments but noted that the legislative criteria in this area were drafted with little flexibility, with the result that the AACA skills assessment, which did not include a validity date, was deemed to have been valid for 3 years only from the date of issue.  While the certification granted to him by the ARBV was issued within 3 years of his being invited to apply for the subclass 189 visa, the ARBV was not gazetted in the relevant written instrument as a relevant assessing authority for the purposes of cl.189.212.  The Tribunal undertook to give the matter careful consideration in view of the applicant’s circumstances as a fully qualified architect working in that occupation at the time that he was invited to apply for the visa.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets cl.189.212(1) and thus cl.189.212 as a whole.

    Suitable Skills Assessment

13. Clause 189.212(1) 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. For visa applications where the invitation to apply was given on or after 28 October 2013, this assessment cannot be one 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.

14. ‘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.

15. If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course: cl.189.212(2). ‘Registered course’ is defined to mean a course of education or training provided by an institution, body or person that is registered, under the Education Services for Overseas Students Act 2000, to provide the course to overseas students (r.1.03).

16. The Tribunal has reviewed IMMI 15/091 and is satisfied that the relevant assessing authority for the skilled occupation of Architect (ANZSCO code 232111) is the AACA.   There is no legal definition of a ‘skills assessment’ or what ‘assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation’ means in the Act or Regulations.

17. On the evidence before it, the Tribunal finds that:

    ·the applicant was invited to apply for the subclass 189 visa on 28 November 2014;

    ·he lodged the subclass 189 visa application on 15 December 2014;

    ·on 23 March 2015, the applicant provided to the Department a positive skills assessment issued by the AACA on 25 August 2010 for the applicant’s nominated occupation of Architect.  The skills assessment is not expressed to have a validity period;

    ·on 8 December 2011, the applicant was registered to practise as an Architect in Victoria by the ARBV; and

    ·on 6 May 2015, the AACA issued another positive skills assessment to the applicant for his nominated occupation of Architect based on its original assessment of his qualifications on 25 August 2010.

18. The Tribunal finds that, as the AACA skills assessment dated 25 August 2010 did not include a period of validity, it is deemed to have been valid for 3 years (that is, until 25 August 2013) by virtue of the ‘deeming’ provision in cl.189.212(1)(d).  Therefore, it was not valid at the time that the applicant was invited to apply for the subclass 189 visa on 28 November 2014.  The Tribunal notes that the applicant obtained another skills assessment from AACA on 6 May 2015, but finds that this was obtained after he was invited to apply for the subclass 189 visa.  The Tribunal acknowledges the applicant’s argument that, in essence, the AACA is indicating that (given the applicant’s qualifications have remained the same since 25 August 2010), he has always met the requirements for a positive skills assessment as an Architect by AACA from 25 August 2010 continuously to 6 May 2015 (including as at the date on which he was invited to apply for the visa, 28 November 2014).  However, as discussed with the applicant at the hearing, the legislation is drafted very specifically on this issue, and the Tribunal finds that as at 28 November 2014, the applicant did not have a valid positive skills assessment from the AACA (even though he had one prior to this date, and another one after this date). 

19. The Tribunal has considered whether or not the certificate of registration as an Architect issued to the applicant by ARBV on 8 December 2011 could constitute a skills assessment for the purposes of cl.189.212(1) but finds that it cannot, as the ARBV is not specified as a relevant assessing authority for these purposes by IMMI 15/091.

20. On the basis of these findings, the Tribunal must find that the applicant does not satisfy cl.189.212.

21. It follows that the applicant does not satisfy the criteria for the grant of a subclass 189 visa. As this is the only subclass in this case, the decision under review will be affirmed.

22. The Tribunal must also affirm the decision not to grant the second, third and fourth named applicants subclass 189 visas as well, as it finds that they do not satisfy the secondary visa criteria to be members of the family unit of someone who satisfies the primary visa criteria, and there is no evidence that they satisfy the primary visa criteria in their own right.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

    Alison Mercer
    Member