Candalera (Migration)

[2018] AATA 1597

Candalera (Migration) [2018] AATA 1597 (20 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Merryferh Gappi Candalera
Mr Felix Lorenzo Candalera
Master Felryx Candalera
Master Felrhey Candalera

CASE NUMBER:  1722724

DIBP REFERENCE(S):  BCC2017/920618

MEMBER:Sheridan Lee

DATE:20 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) Subclass 190 visas

Statement made on 20 April 2018 at 12:26pm

CATCHWORDS
Migration – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled Nomination (Permanent)) – Whether the applicant has had their skills assessed by the relevant assessing authority at time of application – Registered Nurse (Perioperative) – Skills assessment successfully undertaken after application date – Requirement for skills assessment to have been undertaken before application date – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 190.212

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 2017 to refuse to grant the visa applicant a Skilled Nominated (Permanent) Subclass 190 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 March 2017. The primary criteria for the grant of a Subclass 190 visa are set out in Part 190 of Schedule 2 of the Migration Regulations 1994 (the Regulations) and must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria. All criteria must be satisfied at the time a decision is made on the application.

3. The delegate refused to grant the visa on the basis that the primary applicant did not meet the criteria set out in cl.190.212 of the Regulations. An applicant seeking to satisfy this criteria must, at the time of the invitation to apply for the visa, have had their skills assessed by the relevant assessing authority as suitable for the nominated skilled occupation. The delegate found that whilst the application included evidence that the relevant assessing authority had assessed the applicant’s skills in relation to the nominated skilled occupation, the assessment was issued after the date the applicant was invited to apply for the visa and therefore did not satisfy cl.190.212.

4. Mrs Merryferh Gappi Candalera appeared before the Tribunal on 13 April 2018 to give evidence and present arguments. Mrs Candalera has three dependants, which includes the applicant’s spouse and two children.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 190 visa, which includes cl. 190.212 of Schedule 2 of the Regulations. The applicant has been nominated for the visa by the Victorian Government and the nominated occupation is a Registered Nurse (Perioperative) (ANZSCO 254423).

7. Clause 190.212 requires that at the time of invitation to apply for the visa:

   a)the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation; and

   b)the assessment was not for a Subclass 485 (Temporary Graduate) visa; and

   c)if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment — the period had not ended; and

   d)if paragraph (c) did not apply — not more than 3 years had passed since the date of the assessment.

8. At the hearing, the applicant supplied the Tribunal with a detailed timeline of her visa application process, along with supporting documents and evidence. The Tribunal accepts that the applicant’s submission is an accurate account of events. Relevantly, the applicant has submitted evidence of the following:

   ·On 5 December 2016, the applicant submitted an application for an assessment of her nursing skills for the purposes of migration to the Australian Nursing and Midwifery Accreditation Council (ANMAC).

   ·On 11 January 2017, the Victorian Department of Economic Development, Jobs, Transport and Resources advised the applicant that she was successful in her application for nomination by the Victorian Government under the Subclass 190 visa scheme. The notification letter advised the applicant to lodge an Expression of Interest (EOI) through the Department of Immigration and Border Protection (now the Department of Home Affairs) online portal, SkillSelect for the 190 visa.

   ·On 14 January 2017 the applicant lodged the EOI and on 16 January 2017, SkillSelect notified the applicant that she had received an invitation to lodge a Subclass 190 visa application, nominated by the Department of Economic Development, Jobs, Transport and Resources.

   ·On 8 March 2017, the applicant submitted her application to the Department of Home Affairs (the Department) for the Subclass 190 visa. On the application form, the applicant answered ‘Yes’ to the following question –

   Does the applicant have a suitable skills assessment from the relevant assessing authority, which is not for a Subclass 485 (Temporary Graduate) visa?

   ·The applicant listed the date of her skills assessment as 5 December 2016.

   ·On 25 May 2017, ANMAC issued a letter stating that the applicant’s ‘skills have been assessed as suitable for migration for the nominated occupation of 254423 Registered Nurse (Perioperative).’ The applicant provided a copy of this assessment to the Department on 27 May 2017.

   ·On 17 July 2017, the Department wrote to the applicant to request a copy of the skills assessment dated 5 December 2016, as referred to in the visa application form.

   ·On 18 July 2017, the applicant submitted a form 1023 – Notification of incorrect answers. On the form, the applicant stated –

   I don’t have the ANMAC Skills Assessment dated 5 December 2016. The date “5 December 2016” was the letter of completion of my online form/confirmation that they received my application for the assessment of my nursing skills for migration purposes with a cover letter and reference number attached to the letter.

   I am very sorry that I put the date “5 December 2016 because I thought that I can use this letter/date as the completion/confirmation of my application for the ANMAC Assessment, I didn’t realise earlier that I have to wait for their final letter.

   I hope for your kind consideration that this won’t affect our migration application, I don’t have any intentions to mislead you.

   Thank you very much.

   ·On 15 September 2017, the Department sent a notification of refusal of application for the Subclass 190 visa to the applicant on the basis that she did not meet the skills assessment criteria set out in cl.190.212.

9. Based on the above agreed facts, the Tribunal finds that the applicant applied for an assessment of her skills by ANMAC on 5 December 2016 and that ANMAC is the relevant assessing authority for the occupation of Registered Nurse (Perioperative) for the purposes of cl.190.212 (see IMMI 16/059). On 25 May 2017, ANMAC issued a letter confirming that the assessment of the applicant’s skills as suitable for the nominated skilled occupation was complete. From this date, ANMAC had assessed the applicant’s skills as suitable.

10. The Tribunal therefore finds that at the time of invitation on 16 January 2017, the relevant assessing authority had not assessed the applicant’s skills.

11. The plain wording of cl.190.212 specifies that at it was a requirement at the time of invitation, that the relevant assessing authority had assessed the applicant’s skills as suitable. It is this specific temporal requirement contained in cl.190.212 that is not met, despite the applicant ultimately receiving a positive assessment from ANMAC at a later date.

12. The Tribunal acknowledges that the applicant failed to appreciate what was required to apply for the Subclass 190 visa. The Tribunal further accepts that the applicant is dismayed that such a seemingly technical oversight could derail her subclass 190 visa application and that of her family, particularly since she subsequently received the necessary assessment. However, the Tribunal must find that as 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, the applicant does not satisfy cl.190.212. The applicable law does not give the Tribunal any power to waive or overlook the need to meet this requirement.

13. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 190 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

14. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second, third and fourth applicants do not satisfy the secondary criteria for a grant of a visa, as per cl.190.311 on the basis that they are not a member of a family unit of a person who holds a Subclass 190 visa.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) Subclass 190 visas.

    Sheridan Lee
    Member