1510818 (Migration) - [2015] AATA 3650

1510818 (Migration) [2015] AATA 3650 (10 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Farhan Ahmad
CASE NUMBER:  1510818
DIBP REFERENCE(S):  BCC2015/636493
MEMBER:John Billings
DATE:10 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 10 November 2015 at 4:16pm
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 3 August 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 Ahmad, applied for the visa on 26 February 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 Ahmad did not satisfy cl.485.224 of Schedule 2 to the Regulations. The delegate found that Mr Ahmad nominated in the visa application the occupation of Mechanical Engineer and stated that he had applied to Engineers Australia for a skills assessment but the skills assessment that he provided to the Department was for the occupation of Electronics Engineer. Mr Ahmad applied for review on 10 August 2015.
Mr Ahmad appeared before the Tribunal on 27 October 2015. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
Mr Ahmad is a 26 year old national of Pakistan. He first arrived in Australia on 23 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. He has departed and re-entered Australia since he first arrived. In Australia he has completed a Master of Engineering Systems (Mechanical Engineering) degree.
At the hearing Mr Ahmad referred to a statement that he prepared, headed “Explanation & Facts about the Case”. He then submitted the statement and documents including some academic records, a document entitled Migration Skills Assessment produced by Engineers Australia, and decisions in other cases, one by the Tribunal and one by the MRT (Migration Review Tribunal).
Mr Ahmad gave detailed evidence especially about the history of his study in Australia and advice that he received about what he needed to do to achieve his goals. He said that he had a keen interest in Mechatronics (which combines electronics engineering and mechanical engineering). Teachers and colleagues made recommendations to him on the basis of his interests, qualifications and work experience.…

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 1510818 (Migration)

Details

AGLC: 1510818 (Migration) [2015] AATA 3650
Case: [2015] AATA 3650
Decision Date: 10 November 2015

CaseChat Overview and Summary

In the matter of 1510818 (Migration), the applicant, Mr. Ahmad, sought a Subclass 485 visa in the Graduate Work stream, specifically targeting the occupation of Mechanical Engineer. The Tribunal was tasked with determining whether Mr. Ahmad met the primary criteria for the visa, particularly those relating to the applicant's skills in relation to the nominated skilled occupation. The dispute centered on whether Mr. Ahmad had satisfied the requirement to provide a skills assessment for Mechanical Engineering, as stipulated by clause 485.224 of Schedule 2 to the Regulations.

The legal issues before the Tribunal included whether Mr. Ahmad had applied for a relevant skills assessment for Mechanical Engineering, as required by clause 485.223, and whether the skills assessment he had submitted for a different occupation, Electronics Engineering, was sufficient to meet the visa criteria. The Tribunal needed to consider the definition of 'relevant assessing authority' and 'skilled occupation' as specified in the Regulations and the legislative instrument. Furthermore, the Tribunal had to evaluate Mr. Ahmad's explanation for his confusion regarding the advice he received from various sources, including the Dean at his university and a representative of Engineers Australia.

After considering the evidence, the Tribunal concluded that Mr. Ahmad had not provided a skills assessment for Mechanical Engineering, the occupation he had nominated in his visa application. Although Mr. Ahmad claimed to have been genuinely confused by the advice he received, the Tribunal found that he intended to nominate Mechanical Engineer and did not make an error in completing the visa application. Since Mr. Ahmad did not satisfy the requirement for a skills assessment for the nominated occupation, the Tribunal determined that he did not meet the primary criteria for the grant of a Subclass 485 visa. Consequently, the decision not to grant the visa was affirmed.

The Tribunal's final order affirmed the decision not to grant Mr. Ahmad a Skilled (Provisional) (Class VC) visa, upholding the earlier decision reviewed.

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 Ahmad 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 Ahmad 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 Ahmad nominated the occupation of Mechanical Engineer which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Engineers Australia. 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 Ahmad has not provided a skills assessment for the nominated occupation of Mechanical Engineer. The skills assessment that he has submitted is a skills assessment for a different occupation, Electronics Engineer. Mr Ahmad described the pressure that he was under at the time he applied for the visa and the advice that various people gave him that influenced his actions. Whatever precisely may have been said especially by the Dean at his university or the representative of Engineers Australia Mr Ahmad mentioned, the Tribunal is satisfied on the basis of Mr Ahmad’s evidence that he was genuinely confused about what their statements meant for his skills assessment application and for his visa application. The Tribunal however is not satisfied that Mr Ahmad intended to do otherwise than to nominate the occupation of Mechanical Engineer in his visa application. In a sense he may have made an error by choosing that nominated occupation for the purpose of his visa application but, the Tribunal finds, he did not make an error in completing the visa application: he nominated the occupation he intended to nominate. Having nominated that occupation he could not later change his nominated occupation: see Pavuluri v MIBP [2014] FCA 502.

Decision

Reasons for decision

On the basis of these findings, the Tribunal concludes that Mr Ahmad 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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