1509025 (Migration) - [2015] AATA 3611

1509025 (Migration) [2015] AATA 3611 (9 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Asim ANWAR
CASE NUMBER:  1509025
DIBP REFERENCE(S):  BCC2015/832484
MEMBER:John Billings
DATE:9 November 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 09 November 2015 at 4:48pm
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 2 July 2015 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Mr Anwar, applied for the visa on 14 March 2015. 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 visa because Mr Anwar did not satisfy cl.485.224 of Schedule 2 to the Regulations. The delegate found that Mr Anwar nominated in the visa application the occupation of Internal Auditor and stated that he had applied to VETASSES for a skills assessment but the skills assessment that he provided to the Department was for the occupation of Quality Assurance Manager (ANZSCO Code 139914). The delegate further noted that the occupation of Quality Assurance Manager was not listed on the current Skilled Occupation List. Mr Anwar applied for review on 6 July 2015.
Mr Anwar appeared before the Tribunal on 27 October 2015 to give evidence and present arguments.
Mr Anwar was represented in relation to the review by his registered migration agent.
Mr Anwar is a 30 year old national of Pakistan. He first arrived in Australia on 31 January 2012 holding a passport issued by that country and a Class TU Student visa. He was later granted a further Student visa that ceased on 15 March 2015. Mr Anwar has departed and re-entered Australia since he first arrived.
In the visa application Mr Anwar stated his nominated occupation to be Internal Auditor. He indicated that he had made an application for a skills assessment to the relevant assessing authority, VETASSES, and said that the date of the skills assessment was 14 March 2015. He later provided to the Department a skills assessment made by VETASSES dated 20 May 2015. The skills assessment was for the skilled occupation of Quality Assurance Manager.
At the hearing Mr Anwar told the Tribunal that he has been working as a security guard but he has qualifications in Quality Assurance Management. The Department’s file includes a copy of his…

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.

Continue reading 1509025 (Migration)

Details

AGLC: 1509025 (Migration) [2015] AATA 3611
Case: [2015] AATA 3611
Decision Date: 9 November 2015

CaseChat Overview and Summary

Mr Anwar, an applicant for a Subclass 485 visa in the Graduate Work stream, challenged the decision of the Tribunal to affirm the visa refusal. The primary issue before the Tribunal was whether Mr Anwar met the requirements for a Subclass 485 visa, specifically under clause 485.224 of Schedule 2 to the Regulations, which pertains to the applicant’s skills in relation to their nominated skilled occupation. The central question was whether Mr Anwar had provided a skills assessment for the nominated occupation of Internal Auditor by the relevant assessing authority, VETASSESS, within the last three years as required by clause 485.224(1).

The Tribunal examined the evidence provided by Mr Anwar, which showed that he had not submitted a skills assessment for the nominated occupation of Internal Auditor. Instead, he had submitted a skills assessment for a different occupation, Quality Assurance Manager. Mr Anwar explained the pressure he was under and the advice he received from friends, which influenced his actions. However, the Tribunal found that the evidence did not support a finding that Mr Anwar intended to nominate a different occupation. Furthermore, even if Quality Assurance Manager was an applicable occupation, it was not on the Skilled Occupation List, thus not assisting his case.

The Tribunal concluded that Mr Anwar did not satisfy the criteria for the grant of a Subclass 485 visa. Given that this was the only relevant subclass in the case, the Tribunal affirmed the decision not to grant Mr Anwar a Skilled (Provisional) (Class VC) visa. The Tribunal found that the decision under review should be upheld based on the lack of a valid skills assessment for the nominated occupation of Internal Auditor.

The Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) 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 Mr Anwar is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include 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 Mr Anwar meets those requirements.Had the applicant applied for a relevant skills assessment? Clause 485.223 requires that when the visa application was made, it was 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’. ‘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. ‘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). The relevant instrument is Legislative Instrument IMMI 15/091. On the evidence before the Tribunal, Mr Anwar nominated the occupation of Internal Auditor which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is VETASSES. Clause 485.224(1) requires that the applicant’s skills for the nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation. In addition, if the assessment is expressed to be valid for a particular period, that period must not have ended: cl.485.224(1A). Mr Anwar has not provided a skills assessment by VETASSESS for the nominated occupation of Internal Auditor. He has given evidence that VETASSESS informed him that he could not be assessed for the occupation of Internal Auditor. The skills assessment that he has submitted is a skills assessment for a different occupation, Quality Assurance Manager. Mr Anwar described the pressure that he was under at the time he applied for the visa and the advice friends gave him that influenced his actions. Mr Anwar did not however suggest that he intended to do otherwise than to nominate the occupation of Internal Auditor. The evidence would not support a finding that he intended to do otherwise than nominate the occupation of Internal Auditor. He could not later change his nominated occupation: see Pavuluri v MIBP [2014] FCA 502. Even if he were able to substitute the occupation of Quality Assurance Manager as his nominated occupation that would not assist him for, as he recognised, Quality Assurance Manager is not an occupation on the applicable Skilled Occupation List: see Schedule 1 of IMMI 15/091.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that Mr Anwar 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.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.John BillingsSenior Member

Ratio Decidendi

Legal Principle Established

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