Hewett (Migration)

[2018] AATA 3531

Hewett (Migration) [2018] AATA 3531 (23 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Craig William Hewett
Miss Tina Louise Griffiths

CASE NUMBER:  1711940

HOME AFFAIRS REFERENCE(S):           BCC2017/963394

MEMBER:Kira Raif

DATE:23 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

Statement made on 23 July 2018 at 3:55pm

CATCHWORDS
Migration – Skilled Independent (Permanent) visa – Subclass 189 – Skilled – Independent – Skills assessment – Applied assessment not with relevant assessing authority – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15I, 2.26B, Schedule 2 cl 189.212

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 and Border Protection on 19 May 2017 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 is a national of the UK born in September 1989. He was invited to apply for the visa on 1 March 2017 and applied for the visa on 11 March 2017. The application includes his partner. The delegate refused to grant the visa finding that the applicant did not meet cl. 189.212 because the delegate was not satisfied the applicant obtained the skills assessment by the relevant assessing authority at the time he was invited to make the application. The applicants seek review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 23 July 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. 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.

6. ‘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.

7. 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).

   Suitable Skills Assessment

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that he had nominated the occupation of Air-conditioning and Refrigeration Mechanic (ANZSCO 342111) when making the application. The relevant assessing authority for that occupation is Trades Recognition Australia (TRA).

9. The applicant provided with his application, and also to the Tribunal, a Craft Certificate issued by the Commissioner of Vocational Training in July 2016. That is not the relevant assessing authority for the nominated occupation. The applicant had not provided a skills assessment from the TRA.

10. The applicant provided to the Tribunal a number of documents, including evidence of his relationship with his partner, evidence of his past study and employment. He also presented evidence of his Australian qualifications. The applicant told the Tribunal in oral evidence that he was unaware of the need to obtain the skills assessment because he had the Australian qualifications and thought these would be recognised. The Tribunal acknowledges that the applicant holds Australian qualifications but on his own evidence, he has not applied for, nor obtained, the TRA skills assessment.

11. The Tribunal is not satisfied that at the time of the invitation, the relevant assessing authority had assessed the applicant’s skills as suitable for his nominated skilled occupation. The applicant does not satisfy cl.189.212(1) and cl. 189.212. The second named applicant does not meet cl. 189.321 and there is no suggestion that she meets the primary criteria for visa grant.

    Conclusion

12. 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

13. The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

    Kira Raif
    Senior Member