1607515 (Migration)

[2016] AATA 4637

1607515 (Migration) [2016] AATA 4637 (3 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Eva-Marii Duskevits
Mr Janar Eslon

CASE NUMBER:  1607515

DIBP REFERENCE(S):  BCC2016/1576726

MEMBER:Alison Mercer

DATE:3 November 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 189 visa:

·cl.189.212 of Schedule 2 to the Regulations.

Statement made on 03 November 2016 at 2:48pm

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 6 May 2016 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (subclass 189) (Skilled – Independent) visas 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 first named applicant (the applicant) was invited to apply for the visa on 9 March 2016 and applied for the visa on 28 April 2016 nominating the skilled occupation of Solicitor.

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 primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. In the present case, the delegate refused to grant the visas because the applicant did not satisfy cl.189.212, which required that, at the time she was invited to apply for the visa (9 March 2016), the applicant had a positive skills assessment for her nominated skilled occupation which was valid, and which had not been issued for the purposes of a subclass 485 (Skilled Graduate) temporary visa application.

4. The delegate found that the applicant stated in her visa application, lodged on 28 April 2016, that she had a positive skills assessment for her occupation of Solicitor (ANZSCO 271311) from the State Legal Admissions Authority (SLAA) dated 16 February 2016.  However, based on the fact that the applicant was admitted to the Supreme Court of Victoria on 22 March 2016, the delegate concluded that the applicant had received a positive skills assessment on that date, after she was invited to apply for the visa.  She therefore found that the applicant did not meet cl.189.212(1) and did not meet cl.189.212 as a whole.  The delegate also refused to grant a subclass 189 visa to the second named applicant (the de facto partner of the applicant) on the basis that he did not satisfy the secondary visa criteria in cl.189.311 to be a member of the family unit of a person who held a subclass 189 visa, and there was no evidence that he met the primary visa criteria in his own right.

5. The Tribunal received a review application from the applicants on 25 May 2016, which was accompanied by a copy of the delegate’s decision and the following documents:

   ·screenshot of part of the Department’s website listing the Council of Legal Education and Board of Examiners as the relevant State Legal Admissions Authority for Victoria (the state in which the applicant made her application);

   ·certified copy of letter issued 16 February 2016 to the applicant by the Victorian Legal Admissions Board (VLAB) confirming that her academic and practical legal training requirements satisfy the skills requirements for admission to the legal profession in Australia, and noting that she had applied to be admitted as a lawyer to the Supreme Court of Victoria on 22 March 2016; and

   ·submission from the applicant in which she argued that the relevant assessing authority for Solicitors in Victoria was listed on the Department’s website as the Council of Legal Education and Board of Examiners, known as the Victorian Legal Admissions Board (VLAB) from 1 July 2015, and that it is specifically stated that ‘if your nominated occupation is legal practitioner you must first make application for admission as a lawyer to the State Legal Admission Authority in the relevant state or territory in which you intend to settle and practice.  When you have been accepted, you do not need any other skills assessment for your skilled migration application’.  She noted that she obtained the relevant skills assessment from VLAB on 16 February 2016, almost a month before she was invited to apply for the visa, and had provided it to the Department, but that the delegate had misunderstood it and further, had failed to contact VLAB to clarify any concerns regarding its standing as a valid skills assessment.  The applicant argued that, even if it was found that the skills assessment was in fact issued after she was invited to apply for the visa, then the principles outlined in Berenguel v Minister for Immigration and Citizenship, decided by the High Court in 2010, should be applied such that she should be allowed to demonstrate that she had recent competency relevant to her skills.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.  In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 16/060.

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. The Tribunal is satisfied that IMMI 16/060 lists Solicitor as a skilled occupation for the purposes of this visa subclass, and that the relevant assessing authority is listed as SLAA.  According to the Department's website ( in Victoria this is the Council of Legal Education and Board of Examiners ( Having made enquiries of VLAB, the Tribunal is satisfied that the Council of Legal Education and Board of Examiners changed its title to VLAB on 1 July 2015, and that it remains the relevant SLAA for Victorian legal practitioners for the purposes of this visa application.

11. From the material on the Department’s and Tribunal’s files, the Tribunal is satisfied that:

    ·the applicant was invited to apply for a subclass 189 visa on 9 March 2016 by the Department;

    ·the applicant lodged a subclass 189 visa application online on 28 April 2016 in which she nominated her skilled occupation as Solicitor and indicated that she had a suitable skills assessment for this occupation from the State Legal Admission Authorities (SLAA) dated 16 February 2016;

    ·the applicant received a letter issued 16 February 2016 to the applicant by the Victorian Legal Admissions Board (VLAB) confirming that her academic and practical legal training requirements satisfied the skills requirements for admission to the legal profession in Australia, and that she had applied to be admitted to the Supreme Court of Victoria on 22 March 2016.  The letter does not state that it was issued for the purposes of a subclass 485 visa application and expresses no validity period; and

    ·the applicant provided a copy of this letter to the Department on 12 May 2016.

12. From the material on the Department’s file, it is evident that the letter issued by VLAB on 16 February 2016 was issued on the basis that the applicant had completed a Bachelor of Laws (Graduate Entry) at Victoria University in Melbourne between 24 February 2014 and 22 August 2015 and a Master of Laws degree at the University of Melbourne between 27 February 2012 and 27 February 2013.  The Tribunal is satisfied from the Department of Education and Training’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) website that these are registered courses.  The Tribunal is further satisfied from the Department’s movement records that the applicant held subclass 573 (Higher Education Sector) student visas for the duration of the above courses.

13. The Tribunal has had regard to the reference in the Department’s Procedures Advice Manual (PAM3) regarding “Suitable skills assessment” for subclass 189 visas. Whilst the reference specifically provides that for doctors, evidence of full registration is a favourable skills assessment for this criterion, it is silent on the specific requirements for Solicitors. However, the Tribunal considers that even if it were not, to impose a requirement in policy that applicants must be admitted to practise (as opposed to being eligible to be admitted) would be to superimpose a requirement in excess of that prescribed by the relevant regulation, which merely 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.

14. The Tribunal is satisfied that the VLAB letter of 16 February 2016 is a positive skills assessment for the applicant as a Solicitor (regardless of whether she was not actually admitted to practise by the Supreme Court of Victoria until 22 March 2016).  The Tribunal is further satisfied that the VLAB skills assessment was obtained prior to the applicant being invited to apply for the subclass 189 visa on 9 March 2016, and remains valid.

15. On the basis of these findings, the Tribunal finds that the applicant satisfies cl.189.212.

16. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.   As the second named applicant applied on the basis of being a member of the applicant’s family unit, his application will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.

    DECISION

17. The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 189 visa:

    ·cl.189.212 of Schedule 2 to the Regulations.

    Alison Mercer
    Member