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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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). 

7. 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.  He found the last semester of study stressful but he received confirmation on 16 January 2015 that he had successfully completed his Master’s degree course.  Before then the Dean of his faculty had however advised that the course was not accredited by Engineers Australia.  Mr Ahmed said that he was intending “to apply for accreditation of [the] course” as soon as he completed the course.  Before he applied to Engineers Australia he contacted that organisation and was told in effect that course accreditation was required for professional membership but that for migration purposes he had to apply for a skills assessment.  Mr Ahmad said that he explained his situation to Engineers Australia it was suggested to him that he apply on the basis of the education he received in Australia.  He said that he “had confirmed regarding the selection of occupation” (sic) for his application to Engineers Australia from what its representative said and from what the Dean said.  He went online and downloaded relevant Engineers Australia documentation.  In the meantime his Student visa was soon to expire so he finalised the documents he needed for his visa application and provided the Department with the receipt for his skills assessment application.  Mr Ahmad noted that he did this without the assistance of a migration agent or lawyer because he could not afford to pay their fees.  In March, 2015, the month after he applied for the visa, the Department gave him a list of required documents and he  provided everything required except for the skills assessment which he and the Department acknowledged would take more time for him to obtain.  Mr Ahmad said that some of the material he provided to Engineers Australia related to the field of Mechatronics.  Engineers Australia requested further information from him about some options that involved “electronics engineering activities” but did not relate to the occupation of Mechanical Engineer.  Mr Ahmad asserted in effect that there was thus “an obvious difference” between the statement about the options being considered by Engineers Australia and the statement previously made by its representative that he should apply for a skills assessment based on his Australian qualification.  He said that he was “really confused” and had been expecting a skills assessment for the occupation Mechanical Engineer.  He submitted or re-submitted further material to Engineers Australia and on 31 July 2015 Engineers Australia issued the skills assessment for Electronics Engineer.  At this point, seeing that the occupation referred to in the skills assessment was different to Mechanical Engineer, Mr Ahmad consulted many colleagues and a migration agent.  They advised him that there would be no problem because both occupations were on the Skilled Occupation List.  The Department would not “accept the changing of [his] nominated skill[ed] [occupation]”.  Nevertheless Mr Ahmad maintained that he was eligible for the visa because he had all the documents required including a skills assessment.  He emphasised that his intentions were genuine and he said in effect that he relied on advice given by Engineers Australia.  He also commented that the Engineers Australia’s document, Migration Skills Assessment, did not include information to guide applicants who relied on a Bachelor’s degree or Master’s degree.  Mr Ahmad asked for reconsideration of his case in the circumstances.

8. The Tribunal asked Mr Ahmad whether, when he put the occupation Mechanical Engineer in his visa application as his nominated occupation, he intended to do that.  He responded by saying in effect that it was not his real intention.  He said that he was not sure what occupation Engineers Australia would provide a skills assessment for because he had qualifications relating both to electronics and mechanical engineering.  He said there was human error because of his uncertainty about that.  It was put to him by the Tribunal that he made a choice between possible occupations and he chose Mechanical Engineer.  He said that he was uncertain because Engineers Australia was going to provide the assessment on the basis of his qualifications.  He said that his case was different because he had a Bachelor’s degree (obtained in Pakistan) and a Master’s degree (obtained in Australia).  When the Tribunal asked whether he had ever asked Engineers Australia for an assessment of his skills for the nominated occupation of Mechanical Engineer (since it provided the one submitted to the Department) he said that he had not done that.  He added that Engineers Australia had never given him that option.   He suggested that Engineers Australia could do that now but said that it would be complicated.  He also said in effect that if the Department allowed him to “correct” his nominated occupation (to Electronics Engineer) then his visa application could succeed. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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?

11. 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’.

12. ‘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. 

13. 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.

14. 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).

15. 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.

16. The decisions in the other cases that Mr Ahmad referred to do not assist him.  In 1503872 (Migration) [2015] AATA 3370 the visa applicant nominated one occupation and provided a skills assessment for a different occupation but, by the time of the Tribunal’s decision, the applicant provided another skills assessment, this time for the occupation nominated in the visa application. In 1413574 [2015] MRTA 274 the main issue concerned the visa stream that the applicant intended to nominate.  Similar to the Tribunal’s findings in the present case, the MRT considered that the applicant’s intention was to nominate the Graduate work stream even if that intention was “formed on the basis of erroneous information” (at paragraph [24]).  The Tribunal referred to the applicant’s skills assessment that was based on overseas qualifications.  The Tribunal also referred to her relevant Australian qualifications that were not accredited beforehand but that were accredited by the time of the Tribunal’s decision.  In Mr Ahmad’s case, the issue is ultimately not about course accreditation.  For him to succeed he needs a positive skills assessment for his nominated occupation.  He does not have that. 

17. The outcome for Mr Ahmad is unfortunate considering not only the lengths to which he has gone to obtain relevant qualifications and pursue his specialised professional interests but also the degree to which he otherwise appears to meet relevant criteria for the visa.  However, it follows from the above that Mr Ahmad does not meet the requirements of cl.485.224.

18. 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

19. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    John Billings
    Senior Member