1506650 (Migration)

[2016] AATA 3839

1506650 (Migration) [2016] AATA 3839 (29 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Giedrius Brazickas

CASE NUMBER:  1506650

DIBP REFERENCE(S):  BCC2015/752641

MEMBER:Antoinette Younes

DATE:29 April 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

Statement made on 29 April 2016 at 4:16pm

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 28 April 2015 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa 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 applicant was invited to apply for the visa on 9 January 2015 and applied for the visa on 9 March 2015 nominating the skilled occupation of Electrical Engineering Technician.

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 delegate refused to grant the visa because the applicant did not satisfy cl.189.212 which requires an applicant to have a suitable skills assessment for their nominated occupation.

4. The applicant appeared before the Tribunal on 18 April 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether at the time of invitation, the applicant had a suitable skills assessment.

   Does the applicant have a suitable Skills Assessment?

7. 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.

8. ‘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.

9. 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).

10. In support of the application for review, the applicant provided to the Tribunal a copy of a provisional skills assessment for the nominated occupation of Electrical Engineering Technician ANZSCO Code 312312 issued by Trades Recognition Australia (TRA) dated 22 November 2013, reference TRA 13/999298129. He also provided a copy of a letter from TRA Acknowledgement of Job Ready Workplace Assessment Application, dated 8 May 2015.

11. In submissions to the Tribunal dated 14 May 2015, the applicant expressed concerns about the outcome of the visa application. The applicant provided background information about his studies, as well as, the steps he took in relation to applying for the skills assessment. He explained that when he provided the provisional skills assessment, he did not expect the Department to “take it as a final assessment of TRA, but just as a proof that I’m enrolled in the program and successfully going through it. I was running out of time with my expression of interest so wanted to place the visa application as soon as possible. I provided as many documents to prove that and was planning to attach the final TRA assessment as soon as I get it from the authority. For some reason the immigration officer didn’t even consider asking me to any supporting documentation and declined the visa application without any consideration. I fully understand that there are laws, rules and strict requirements for the visa applications that should be followed by no means. Therefore I want to apologise if I understood visa application steps and necessary documents we provided in the incorrect way…”

12. On 18 June 2015, the applicant provided to the Tribunal a copy of TRA Job Ready Final Assessment Outcome from TRA, dated 16 June 2015 noting that the application had been assessed as successful for the occupation of  Electrical Engineering Technician ANZSCO Code 312312, and that the successful skills assessment is suitable for skilled migration.

13. In the course of the hearing, the Tribunal discussed with the applicant relevant information contained in the delegate’s decision record provided by the applicant in support of the application for review, namely that:

    a.In the visa application, the applicant advised that he had obtained, at the time of invitation to apply for the visa a suitable skills assessment for his nominated occupation of Electrical Engineering Technician ANZSCO Code 312312 issued by TRA on 18 December 2013, reference TRA 13/999298129.

    b.In support of the visa application, the applicant provided a successful provisional skills assessment for the nominated occupation of Electrical Engineering Technician ANZSCO Code 312312 issued by TRA on 18 December 2013, reference TRA 13/999298129. The provisional skills assessment indicates that the successful outcome may be used to satisfy the skills assessment requirements for a temporary graduate visa subclass 485.

    c.As the skills assessment was for a subclass 485 visa, the applicant was found not to satisfy subclause 189.212 (1)(b).

14. The Tribunal noted that it would appear that at the time of invitation to apply for the visa, that is, on 9 January 2015, the applicant did not have the relevant skills assessment because the provisional assessment dated 22 November 2013 was for a subclass 485 visa. The applicant told the Tribunal that time was running out when he had to apply for the visa.

15. The Tribunal has carefully considered the applicant’s explanations and the evidence before it. The Tribunal finds that whilst the applicant now has a successful skills assessment, at the time when he was invited to apply for the visa, he did not have a suitable skills assessment because the assessment he provided in support of the visa application was for a subclass 485 visa and therefore, the applicant does not satisfy subclause 189.212(1)(b). Consequently, the Tribunal finds that the applicant does not satisfy cl.189.212.

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

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

    Antoinette Younes
    Senior Member