1603290 (Migration)

[2016] AATA 4720

1603290 (Migration) [2016] AATA 4720 (29 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Julien Remy De Souza

CASE NUMBER:  1603290

DIBP REFERENCE(S):  BCC2016/509032

MEMBER:Adrian Ho

DATE AND TIME OF

ORAL DECISION AND REASONS:          29 November 2016 at 5:32 pm (VIC time)

DATE OF WRITTEN RECORD:                01 December 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 01 December 2016 at 2:19pm

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 February 2016 to refuse to grant the visa applicant a Skilled Independent (Permanent) Subclass 189 visa under the Migration Act 1958 (the Act).

2. At the hearing on 29 November 2016 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The application was refused for not meeting cl.189.212.

4. The applicant provided a copy of the Department’s decision to the tribunal in which it is recorded that the applicant was invited to apply for the visa on 22 January 2016 and later received a positive skills assessment for the nominated occupation, issued on 12 February 2016.

5. At hearing, the applicant agreed with the dates recorded in the Department’s decision and confirmed that the skills assessment was issued after the invitation to apply for the visa.

6. The applicant explained to the tribunal that he was completing his studies, necessary for the assessment of his skills in 2015, and could not have sought the skills assessment earlier, in 2015, and the relevant assessing authority had had problems with its technology systems which had delayed its processing of his skills assessment application.

7. The tribunal accepted that this was so.

8. However, the tribunal suggested that cl.189.212(1)(a) was quite definitive in requiring that the applicant’s skills must have been assessed as suitable for the nominated occupation at the time the invitation to apply for the visa was issued.

9. The tribunal indicated it had no discretion in the application of the criterion, although it understood the events described by the applicant.

10. The tribunal found that as the skills assessment was not made until 12 February 2016, after the applicant was invited to apply for the visa on 22 January 2016, the applicant does not meet cl.189.212(1)(a) and cl.189.212 as a whole.

    DECISION

11. The Tribunal affirms the decision under review.

    Adrian Ho
    Member