Kumar (Migration)

[2021] AATA 2330

Kumar (Migration) [2021] AATA 2330 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pardeep Kumar

CASE NUMBER:  2004274

HOME AFFAIRS REFERENCE(S):          BCC2019/2594394

MEMBER:Wan Shum

DATE:11 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 11 May 2021 at 11:27am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – Motor Mechanic (General) – no suitable skills assessment – applicant does not have competent English – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 362, 379
Migration Regulations 1994, r 1.15, Schedule 2, cls 189.222, 189.223

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 4 February 2020 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 (Cth) (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 and lodged his application on 17 May 2019 nominating the skilled occupation of Motor Mechanic (General).

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 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy clauses 189.222(1) and 189.223.

4. On 1 April 2021, the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 5 May 2021. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

5. On 27 April 2021, the applicant advised the Tribunal that he wanted a postponement of the hearing “due to certain unavoidable circumstances, where in my mother Kamaljeet and spouse Balvir Devi have are medically unfit and need my presence in India as soon as possible. As you know situation in India is quite worse, and there is no one support them especially my mother; hence I have to be there in urgency. Since this matter for visa application is quite serious for me I would request you to postpone for a short time so that I can attend the hearing with good state of mind. Also please find attached the medical letters for both of them.” The letters that he provided refer to his mother and spouse, and do not address whether the applicant is able to participate in the hearing.

6. The Tribunal considered the request but, as the applicant did not provide any information about his immediate travel plans such as an itinerary or other supporting documents as to why he could not attend such as a letter from a doctor regarding his capacity, it advised the applicant on 29 April 2021 that the hearing would proceed unless he provided evidence that he did not have capacity to attend. The Tribunal did not receive a response to its letter of 29 April 2021.

7. Two separate SMS reminders were sent to the applicant about the hearing and then on 5 May 2021, an officer of the Tribunal attempted multiple times to phone the applicant for the hearing. The applicant did not answer his phone. The Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), and received the invite given his request for a postponement received on 27 April 2021 and a further email on 28 April 2021. While the Tribunal appreciates that the current situation in India may be of considerable concern to the applicant given that members of his family remain there, he did not provide a letter regarding his capacity to participate in the hearing. Furthermore, the Tribunal accepts that the review of the decision to refuse his visa is important to the applicant, but it has been two years since he made the application for the visa and he has not provided any submissions or evidence to support his case. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in the present case is whether the applicant has a suitable skills assessment and the English language proficiency required for the visa sought.

10. The applicant completed the application form indicating that he had a suitable skills assessment dated 27 March 2019 for his nominated skilled occupation of Motor Mechanic (General) from Trades Recognition Australia (TRA) and provided a reference number 495845IJGDIEJF. The applicant provided details of having sat a PTE Academic test on 9 March 2019. The reference number provided was 586535694.

11. The delegate noted that the reference number for the skills assessment was not consistent with TRA’s format of reference numbers for their skills assessment. The delegate also noted that the reference number provided for English language is not consistent with PTE Academic’s format of reference numbers for their tests and further, that the attempts to verify the test on PTE Academic’s website shows that no such test exists with this reference number.

12. The applicant provided a copy of his passport information page with his application for review. This indicates that he holds a passport of India. Other than the correspondence received seeking a postponement of the hearing, which included the notification of a new residential address, the only correspondence received from the applicant to date are two requests for letters to submit to Medicare. No submissions or material supporting his case has been received regarding the issues.

    Suitable Skills Assessment

13. Clause 189.222(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.

14. There is no evidence before the Tribunal that a relevant assessing authority had assessed the applicant’s skills as suitable for that occupation. Given this, there is no evidence that the applicant satisfies cl 189.222(1).

    English language proficiency

15. Clause 189.223 requires that at the time of invitation to apply for the visa, the applicant had competent English.

16. ‘Competent English’ is relevantly defined in reg 1.15C of the Regulations as follows:

    (1)A person has competent English if:

    (a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

    (b)the person is an applicant for a visa; and

    (ba)for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under the Regulations, in writing, to apply for the visa - the test was conducted in the 3 years immediately before the date of the invitation; and

    (bb)…; and

    (c)the person achieved a score specified in the instrument.

    (2)A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

17. The applicant provided a copy of his passport information page which is a passport of India and there is no evidence that the applicant has held a passport of a type specified (the United Kingdom; the United States of America; Canada; New Zealand; or the Republic of Ireland). The applicant therefore does not have competent English as defined in reg 1.15C(2).

18. Nor is there evidence before the Tribunal that the applicant had undertaken a specified language test that was conducted in the 3 years immediately before the date of invitation to apply and achieved the specified score. The applicant therefore does not have competent English as defined in reg 1.15C(1).

19. Therefore, the applicant does not satisfy cl 189.223.

20. On the information before the Tribunal, the decision under review will be affirmed.

    DECISION

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

    Wan Shum
    Member