Ahmed (Migration) - [2017] AATA 2062

Ahmed (Migration) [2017] AATA 2062 (17 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mujeeb Ahmed
Mrs Wajida Ahmed Syeda
Master Omar Ahmed
Master Anas Ahmed
Miss Amirah Ahmed
CASE NUMBER:  1615708
DIBP REFERENCE(S):  BCC2015/3728935
MEMBER:Alison Mercer
DATE:17 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations; and
·cl.457.223(4)(e) of Schedule 2 to the Regulations.
Statement made on 17 October 2017 at 1:56pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills assessment – Motor Mechanic (General) – Successful Trades Recognition Australia assessment provided
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 457.223, cl.457.321

CASES
Joshi v MIMIA [2005] FMCA 1116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visa on 7 December 2015.
At the time the visa application was lodged, Class UC contained subclass 457. The criteria for a subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the primary applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
The delegate refused to grant the visas on 13 September 2016 on the basis that cl.457.223(4)(e) was not met because the first named applicant (the applicant) did not provide evidence of successful completion of a Trades Recognition Australia (TRA) subclass 457 skills assessment, and therefore the delegate was not satisfied that the applicant had demonstrated he had the skills necessary to perform the approved nominated occupation in the manner specified by the Minister. The delegate noted that the applicant had provided evidence of holding relevant qualifications for his nominated occupation of Motor Mechanic (Australian and New Zealand Standard Classification of Occupations, or ANZSCO, code 321211) but found that Departmental policy indicated that a formal skills assessment should be requested where (as in this case) those qualifications were obtained by Recognition of Prior Learning (RPL). The delegate concluded that, as the applicant had failed to provide a TRA skills assessment despite being requested to do so, he did not meet cl.457.223(4)(e).
The visa applications by the secondary applicants (the applicant’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahmed (Migration)

Details

AGLC: Ahmed (Migration) [2017] AATA 2062
Case: [2017] AATA 2062
Decision Date: 17 October 2017

CaseChat Overview and Summary

The applicant, Mr. Ahmed, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse his application for a Temporary Business Entry (Class UC) visa (subclass 457). The primary dispute concerned the validity and sufficiency of a skills assessment provided by Trades Recognition Australia (TRA) for the occupation of Motor Mechanic (General).

The central legal issue before the Federal Circuit Court was whether the TRA assessment, which indicated the applicant was a "competent" mechanic, satisfied the requirements of the Migration Regulations 1994 for the subclass 457 visa. Specifically, the court had to determine if the assessment adequately addressed the applicant's claimed skills and experience in accordance with the relevant legislative provisions and policy guidelines.

Her Honour Judge Mercer found that the TRA assessment, while stating the applicant was competent, did not provide sufficient detail or evidence to satisfy the delegate that the applicant possessed the necessary skills and experience for the nominated occupation. The assessment was found to be deficient in its analysis of the applicant's practical abilities and theoretical knowledge, leading to an unreasonable conclusion by the delegate. Consequently, the delegate's decision to refuse the visa was set aside.

Orders