1513459 (Migration)

[2016] AATA 4593

1513459 (Migration) [2016] AATA 4593 (2 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hilton Funk

CASE NUMBER:  1513459

DIBP REFERENCE(S):  BCC2015/2164324

MEMBER:Miriam Holmes

DATE:2 November 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 02 November 2016 at 9:07am

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 15 September 2015 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) 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 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 because at the time of invitation to apply for the visa, the relevant assessing authority had not assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation.

3. The applicant appeared before the Tribunal by teleconference on 24 October 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets the requirement in Clause 189.212(1).

   Suitable Skills Assessment

6. 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.

7. The Tribunal is satisfied that the applicant’s nominated occupation of external auditor is a ‘Skilled occupation’ as defined by r.1.15I of the Regulations (r.1.03). ‘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 Tribunal is satisfied that the relevant assessing authority is the Institute of Chartered Accountants of Australia.

8. The Tribunal finds based on the evidence available, including the delegate’s decision record, the visa application, the skills assessment dated 15 July 2015 provided to the Tribunal and the applicant’s oral evidence that:

   ·On 26 June 2015 the applicant lodged an expression of interest for a visa.

   ·On 6 July 2015 the applicant was invited to apply for the visa

   ·On 28 July 2015 the applicant made an application for a Skilled - Independent (Permanent) (Class SI) (Subclass 189) visa.

   ·In the visa application the applicant stated that

   oThe nominated skilled occupation was External Auditor; and

   oOn 24 June 2015 a suitable skills assessment was undertaken by the Institute of Chartered Accountants of Australia, and listed receipt number 1046586.

   ·On 28 July 2015 the applicant provided to the Department a skills assessment dated 15 July 2015 from Chartered Accountants of Australia and New Zealand assessing the applicant’s skills as suitable for the nominated skilled occupation external auditor.

   ·On or about 24 June 2015 the applicant applied for the skills assessment from the assessing authority. When the applicant lodged the visa application he listed the receipt number on the invoice issued by the assessing authority for the skills assessment application. He was not sure how to complete the Department’s online form when he gave information to the Department about his skills assessment. He thought that the expression of interest was not a visa application and he would have time to get the documents ready for when he made his visa application. The skills assessment the applicant received back from the relevant assessing authority was dated 15 July 2015. The Tribunal deferred making a decision until after 31 October 2016 to enable the applicant to seek to gather additional evidence that the skills assessment was completed before 6 July 2015. On 31 October the applicant advised the Tribunal he could not provide any further information to the Tribunal.

   ·The applicant previously obtained a skills assessment in June or July 2013, however the skills assessment was for a subclass 485 visa application. A copy of this previous skills assessment was not available to the Tribunal.

9. In light of these findings the Tribunal is not satisfied that at the time of invitation on 6 July 2015 the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. The relevant assessing authority assessed the applicant’s skills as suitable on 15 July 2015. Therefore the applicant does not meet the requirement in cl.189.212(1)(a). Further, the Tribunal finds that the skills assessment undertaken in 2013 does not meet the requirement in cl.189.212(1)(b) as that skills assessment was undertaken for the purposes of a subclass 485 visa application.

10. On the basis of these findings, the Tribunal is not satisfied that the applicant meets the criteria in cl.189.212.

11. Therefore, 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

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

    Miriam Holmes
    Senior Member