1508184 (Migration) - [2015] AATA 3700

1508184 (Migration) [2015] AATA 3700 (17 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Martin Anthony Keown
Miss Maeve Duke
Master Cooper Keown
CASE NUMBER:  1508184
DIBP REFERENCE(S):  BCC2014/1724761
MEMBER:Mary Cameron
DATE:17 November 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 17 November 2015 at 9:31am
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 4 June 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 14 July 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 delegate refused the visas because the first named applicant (the applicant) did not satisfy cl.485.221, cl.485.222, cl.485.223 and cl.485.224 of Schedule 2 to the Regulations.
The first named applicant (the applicant) appeared before the Tribunal on 20 October 2015 to give evidence and present arguments.
At the Tribunal hearing the applicant told the Tribunal that he has evidence that he had applied for a skills assessment for his nominated skilled occupation at the time of the visa application, but not that his visa application was accompanied by the evidence of his application for a skills assessment. He told the Tribunal that he is a very organised person and he finds it hard to understand that he would have made a visa application which was not accompanied by the necessary evidence that he had applied for his skills assessment at the time.
The Tribunal noted that according to his visa application form (Application for Temporary Graduate or Skilled Regional Visa) the Date of Skills Assessment is recorded as 13 July 2014, the day before he lodged the application on 14 July 2014, and the form also recorded a reference or receipt number 13749109520178. However according to the delegate’s decision record, a copy of which the applicant provided to the Tribunal, no receipt or other evidence was provided to the Department that indicated a skills assessment had been requested from the relevant assessing authority prior to the application being lodged nor was a skills assessment provided.
The applicant reiterated that he can’t understand where the breakdown in the process occurred, and requested a brief adjournment of hearing to review his own records, which the Tribunal granted. The applicant subsequently handed up a handwritten record that states “Payment…

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: [2015] AATA 3700
Decision Date: 17 November 2015

CaseChat Overview and Summary

In the case, the applicant sought to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, and the Tribunal was required to determine whether the applicant met the necessary requirements. The primary criteria in question were cl.485.223 and 485.224 of Schedule 2 to the Regulations, which pertain to the applicant's skills in relation to their nominated skilled occupation. Specifically, the Tribunal had to ascertain whether the applicant's visa application was accompanied by evidence of a skills assessment and whether the applicant's skills had been assessed as suitable for the nominated occupation within the preceding three years.

The Tribunal concluded that the visa application was not accompanied by evidence separate from the application form itself that the applicant had applied to the relevant assessing authority, Trades Recognition Australia (TRA), for a skills assessment. This conclusion was based on the lack of supporting evidence beyond the information provided in the application form. Furthermore, the Tribunal found that the applicant's skills had not been assessed by TRA as suitable for the nominated occupation within the three years prior to the visa application. Consequently, the Tribunal determined that the applicant did not satisfy cl.485.223 and cl.485.224(1). Given these findings, the Tribunal affirmed the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

The Tribunal also examined the claims of the secondary applicants, who were members of the family unit of the primary applicant. To satisfy the primary criteria for a Subclass 485 visa, the secondary applicants would need to be part of a family unit with a primary applicant who met the primary criteria. As the primary applicant did not meet the criteria, the secondary applicants also failed to satisfy cl.485.321. Therefore, the Tribunal affirmed the decision not to grant the secondary applicants Skilled (Provisional) (Class VC) visas.

In summary, the Tribunal affirmed the decision not to grant the primary and secondary applicants Skilled (Provisional) (Class VC) visas due to the primary applicant's failure to meet the primary criteria, specifically cl.485.223 and cl.485.224(1).

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 Solid Plasterer which is a specified skilled occupation. For that occupation the relevant assessing authority is Trades Recognition Australia (TRA). In the present case the applicant provided information as set out above in his visa application form indicating that he had applied to Trades Recognition Australia (TRA) for a skills assessment. He has also expressed his opinion that it would be unlikely that he would not have provided additional evidence of that application with the visa application. However 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 TRA for an assessment of his 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 for 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 in the three years prior to the visa application being made. Therefore the applicant does not satisfy cl.485.224(1).CONCLUSION On the basis of the above findings, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.Secondary applicants

Decision

Reasons for decision

There is no claim or any evidence before the Tribunal that the secondary applicants meet the primary criteria for the grant of the visa. In addition to meet cl.485.321 the secondary applicants must be members 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 the Tribunal finds that the secondary applicants also do not satisfy cl.485.321 and therefore the criteria for a Subclass 485 visa.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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