Ding (Migration)

[2019] AATA 2176

Ding (Migration) [2019] AATA 2176 (20 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wei Yee Ding

CASE NUMBER:  1814139

HOME AFFAIRS REFERENCE(S):           BCC2017/4618183

MEMBER:Warren Stooke AM

DATE:20 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 March 2019 at 5:36pm.

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – ICT Business Analyst – skills assessment – before date of application – after date of invitation – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 189.222

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 Home Affairs on 15 May 2018 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 on 22 November 2017 and applied for the visa on 5 December 2017 nominating the skilled occupation of ICT Business Analyst – ANZSCO 261111.

3. The criteria for the grant of a Subclass 189 visa in the Points-tested stream are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa given that the applicant did not satisfy cl.189.222 because the applicant did not have an accredited skills assessment at the time of invitation, as required under cl.189.222.

4. The applicant appeared before the Tribunal on 19 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Basilone.

5. The Tribunal confirmed with the applicant that she had provided a copy of the delegate’s decision with her application and that she had read and understood the delegate’s decision. In this regard, the applicant confirmed that the decision stated that she did not submit a skills assessment with her application. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant possessed an accredited skills assessment at the time of invitation, as required under cl.189.222.

   Relevant law

8. Subclass 189 is the only subclass of Skilled - Independent (Permanent) (Class SI). 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).

9. Clause189.222(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.

10. ‘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.

11. 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.189.222(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).

    Suitable Skills Assessment

12. The applicant provided the Tribunal with the following correspondence on 15 May 2018, which was prior to the hearing:

    “Dear Administrative Appeals Tribunal:

    My application for the Skilled - Independent (Points-Tested) (subclass 189) Skilled Independent (Permanent) (class SI) visa was refused on the 15th May 2018 for the reason below:

    I was invited to apply for the 189 Skilled - Independent (Points-Tested) visa on 22 November 2017. In the visa application lodged 5 December 2017, I included my skills assessment in the nominated occupation ICT Business Analyst from Australian Computer Society with reference number A-201485. The date of skills assessment was issued on 30 November 2017.

    However, the assessment was issued 8 days after the date that I was invited to apply for this visa and therefore the decision to refuse my visa was made.

    I would like to appeal for this decision to be reviewed by AAT. Prior to my application I called the IMMI contact centre. I was advised to allow my first invitation to lapse and wait for the second automatic invitation to be issued (22 November 2017) to allow for enough time for ACS (assessing authority) to issue my skills assessment (6 weeks). I followed the advice and received my skills assessment on the 30th November 2017 and lodged my application on the 5th of December 2017. My understanding was that I would need the skills assessment letter issued before my application. I was unaware of the fact that I would need the letter issued before my invitation date. I apologise, but had I known that, I would have applied for a new EOI to receive a new invitation. May I ask for advise on next steps? If there is anything else I can do to support my case please let me know. I have lived, studied and worked in Australia for over 9 years now. To have my application denied would be a highly undesirable and disappointing outcome.

    Thank you for your kind understanding.”

13. At the commencement of the hearing the applicant stated that she had applied for a skills assessment on 26 July 2017 and the determination was received on 30 November 2017, which the applicant acknowledged was 8 days after the invitation to apply for a subclass 189 visa.

14. The applicant stated that with 5 months remaining on her then current visa she had sufficient time to wait for the determination of an assessment.

15. The applicant gave evidence that she had been in Australia since 2009 and that this was her home. She stated that she had completed two degrees, including and Masters degree and had worked for the Victorian Government in the Department of Environment, Land, Water and Planning. [Tribunal File – Folio 29].

16. In addition, the applicant stated that she had performed voluntary work as a tutor with the Brotherhood of St. Lawrence.

17. The witness, Ms Basilone, stated that she had known the applicant for 10 years and that she was a person of integrity. She said that she had discussed the application with the applicant at the time and the unfortunate timing of 8 days.

18. Although the Tribunal has empathy for the plight of the applicant, the Tribunal explained to the applicant that the issue was compliance and not a matter of the applicant’s personal character.

19. The Tribunal explained that the Tribunal does not have discretion in relation to the criteria required to satisfy cl.189.222.

20. On the basis of these findings, the applicant does not satisfy cl.189.222(1).

21. 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

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

    Warren Stooke AM
    Member