1515594 (Migration)

[2016] AATA 3803

1515594 (Migration) [2016] AATA 3803 (27 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr James Michael Boylan

CASE NUMBER:  1515594

DIBP REFERENCE(S):  BCC2015/1311737

MEMBER:Antoinette Younes

DATE:27 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 27 April 2016 at 4:07pm

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 10 November 2015 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) 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 applicant was invited to apply for the visa on10 April 2015 and applied for the visa on 6 May 2015 nominating the skilled occupation of Bricklayer (ANZSCO CODE 331111).

3. 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, the applicant had not obtained a suitable skills assessment in the nominated occupation.

4. The applicant appeared before the Tribunal on 26 April 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether at the time of invitation, the applicant had obtained a suitable skills assessment in the nominated occupation of Bricklayer (ANZSCO CODE 331111).

   Suitable Skills Assessment

7. 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.

8. ‘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). ‘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. The relevant instrument for these purposes is Legislative Instrument IMMI 15/091.

9. If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course: cl.189.212(2). ‘Registered course’ is defined to mean a course of education or training provided by an institution, body or person that is registered, under the Education Services for Overseas Students Act 2000, to provide the course to overseas students (r.1.03).

10. In the course of the hearing, the Tribunal indicated to the applicant that in the decision record provided by the applicant in support of the application for review, it is noted that:

    a.In this visa application, he advised that he had obtained, at the time of invitation to apply for the visa, a suitable skills assessment for the nominated occupation of Bricklayer (ANZSCO CODE 331111), issued by Trades Recognition Australia (TRA) on 12 and November 2014, reference number BRC 39805.

    b.On 25 June 2015, the visa application was assessed by the Department and a letter was sent to him requesting documents including a skills assessment. On 28 August 2015, he provided a successful skills assessment dated 28 August 2015 issued by VETASSESS on behalf of TRA for the occupation of bricklayer.

    c.On 4 September 2015, the Department wrote to him advising that the skills assessment by VETASSESS on behalf of TRA on 28 August 2015 does not meet the visa requirements because it was obtained subsequent to the invitation to apply for the visa. The Department asked him to provide the skills assessment issued by TRA on 12 November 2014 with the reference number BRC 39805 as claimed in the visa application.

    d.In October 2015, the Department received a letter from his representative advising that an error had been made by his office and that the applicant does not hold a relevant skills assessment dated prior to the date of invitation for the visa.

    e.As he had not obtained at the time of invitation to apply for the visa a suitable skills assessment for his nominated occupation of bricklayer, he did not satisfy the requirements of subclause 189.21(1)(a). Therefore he was found not to meet c.189.212 in its entirety and as a result he was not granted the visa.

11. The applicant agreed that it is correct that at the time of invitation to apply for the visa, he did not have a suitable skills assessment for his nominated occupation of bricklayer.  He stated that his representative had made a mistake.  

12. The Tribunal discussed with the applicant the submissions dated 22 April 2016, in which the representative referred to the matter of Waensila v Minster for Immigration and Border Protection [2016] FCAFC 32 where the full Federal Court had decided that compelling and compassionate circumstances were to be considered from the date of the visa application to the date of the final decision. The Tribunal indicated that Waensila involved different legal principles where, unlike the present issue of cl.189.212, there is discretion to consider compassionate and compelling circumstances.  The Tribunal indicated that based on the evidence before it, it appears that at the time of invitation to apply for the visa, the applicant did not have a suitable skills assessment for the nominated occupation of Bricklayer (ANZSCO CODE 331111).

13. The Tribunal has carefully considered the submissions and the evidence.  The Tribunal distinguishes the case of Waensila from the present circumstances. Waensila concerned the proper interpretation and application of subclause 820.211(d)((2)(ii) and is authority for the proposition that when determining whether Schedule 3 criteria should be “waived”, material concerning “compelling circumstances” that came into existence after the time of the application must be considered. Cl.189.212 does not have any waiver provisions and/or consideration of compelling or compassionate circumstances. The Tribunal is satisfied that cl.189.212 requires an applicant to have a skills assessment in the nominated occupation from the relevant assessing authority. The Tribunal therefore does not accept the written submissions that the case officer who decided the case “took and narrow approach in applying the regulation which led to the refusal of the visa application”, or that the correct interpretation of the law is that as the applicant has subsequently successfully obtained a skills assessment issued by VETASSESS on behalf of TRA, he meet the requirements of cl.189.212.

14. The Tribunal accepts that the applicant has a favourable skills assessment from the VETASSESS on behalf of TRA dated 28 August 2015.  However, this assessment was obtained subsequent to the invitation on 10 April 2015 and as discussed during the hearing, the requirement is that at the time of invitation to apply for the visa, the applicant has a suitable skills assessment from the assessing authority in the nominated occupation. The Tribunal accepts as plausible that the representative had made a mistake. However, on the evidence before it, the Tribunal is not satisfied that the applicant had a skills assessment from the TRA, the relevant assessing authority, in his nominated occupation of bricklayer, on 10 April 2015  when he was invited to apply for the visa.

15. Accordingly, the Tribunal finds that 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.

16. On the basis of these findings, the applicant does not satisfy cl.189.212.

17. 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

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

    Antoinette Younes
    Senior Member