Gulab (Migration)

[2023] AATA 4172

Gulab (Migration) [2023] AATA 4172 (5 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bashir Ahmad Gulab
Mrs Sehrish Gul
Miss Maryam Gulab
Miss Huda Gulab

CASE NUMBER:  2109829

HOME AFFAIRS REFERENCE(S):          BCC2020/2916755

MEMBER:Mary Sheargold

DATE:5 December 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 05 December 2023 at 9:21am

CATCHWORDS
MIGRATION – Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – skills assessment no longer valid – valid for 2 years – application made during COVID pandemic and updated assessment not received – multiple applications for assessment – members of family unit – length of residence and children’s education – request for referral for ministerial consideration not accepted – applicant can still request directly – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cls 190.212(1)(c), 190.311

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 12 July 2021 to refuse to grant the applicants Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a points based visa 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 20 November 2020 and applied for the visa on 4 January 2021. The criteria for the grant of a Subclass 190 -  Skilled - Nominated visa are set out in Part 190 -  Skilled - Nominated of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirement in cl 190.212(1) of Schedule 2 to the Regulations because the skills assessment he provided with the application was no longer valid.

4. The first named applicant appeared before the Tribunal by MS Teams video link on 16 August 2023 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the first named applicant meets the requirement of cl 190.212(1).

7. That clause 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, that the assessment was not for a Subclass 485 (Temporary Graduate) visa, and if the assessment specified a period during which it was valid, and the period did not end more than 3 years after the date of the assessment, the period had not ended.  The provision also states that if an assessment did not express a period of validity, not more than 3 years must have passed at the date of the assessment.

8. The applicant was invited to apply for the visa on 20 November 2020.  His most recent skills assessment, provided with his application, had been provided by the Australian Computer Society on 24 January 2018 and was valid for 2 years.  This application was made at the height of the Covid-19 pandemic in Australia.

9. At the hearing, Mr Gulab explained that he knew his skills assessment provided with his application had elapsed, but that he had called the Department several times to confirm that it would be acceptable to provide the skills assessment he had because he had not received an updated assessment from the ACS due to delays with processing times.  He stated that he was advised by the person he spoke with that the impact of Covid-19 lockdowns would be taken into account by the Department when considering applications, and that this would extend to understanding that some documents may be unavailable at the time the application was made.

10. Mr Gulab also explained that when he completed the online forms for the invitation for the visa, he was required to provide a copy of his skills assessment, and that he had to include the expiry date of that document in the form and without doing so, he could not progress the application to the next step.  He claims that he assumed that this meant his document was being accepted even though the 2 year period had expired.

11. Mr Gulab conceded he understood the wording of cl 190.212(1) was strict and that the Tribunal was required to assess whether, at the time of invitation, he had a valid skills assessment.  He concedes that he did not.   Therefore, based on all the evidence provided, including Mr Gulab’s oral evidence at the hearing, the Tribunal finds that at the time of the invitation to apply for the visa, Mr Gulab’s most recent skills assessment had expired and so the requirement of cl 190.212(1)(c) could not be met.

12. The applicant does not meet the requirements of cl 190.212(1).  As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

13. Pursuant to cl.190.311, the Tribunal must also affirm the decision to refuse to grant Subclass 190 visas to the secondary applicants as they are not the member of a family unit of a person who holds a Subclass 190 visa, and there is no evidence that they meet the primary criteria in their own right.

    Request for referral for Ministerial intervention pursuant to s 351 of the Act

14. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

15. On 30 August 2023, the applicant wrote to the Tribunal enclosing a copy of a letter to the Minister for Immigration, Citizenship and Multicultural Affairs that outlines the reasons he believes that his application warrants intervention by the Minister personally.  He cites ongoing familial issues, tensions in his family’s home region of Pakistan, his wife’s difficulties obtaining employment as a skilled IT professional and the impact of Covid-19 as the compounding factors that has left his family in a very difficult position in obtaining a permanent residency visa despite clearly meeting the requirements for this points-based visa at the time the invitation was provided and the application was made.

16. The Tribunal notes there are compelling circumstances affecting this family and their long struggle to settle to a permanent life in Australia.  The applicants argue they have been productive members of the Australian community for many years and wish to formalise their ability to remain here permanently.  Their children are settled in Australia and do not know or understand life in Pakistan.  Although Maryam is now nearly 13 years old and has completed all her schooling to date in Australia, she was not born in Australia and so has not attained Australian citizenship.

17. The issues that Mr Gulab has faced in financing multiple applications to the ACS for a skills assessment and the constant expiration of those, as well as the difficulty he faced in attaining a skills assessment during the Covid-19 pandemic, are notable and the Tribunal emphasises that the Gulab family appears to have used its best endeavours at all times to work within the bounds of the legal framework but that they have been caught out by circumstances beyond their control in this instance.

18. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister, using the letter he has already prepared that clearly articulates his case.

    DECISION

19. The Tribunal affirms the decision not to grant the visas.

    Mary Sheargold
    Member