Mushtaq (Migration)

[2021] AATA 1684

Mushtaq (Migration) [2021] AATA 1684 (9 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rizwan Mushtaq

CASE NUMBER:  1911786

HOME AFFAIRS REFERENCE(S):          BCC2018/3621855

MEMBER:R. Skaros

DATE:9 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 489 visa:

·cl.489.222(1) of Schedule 2 to the Regulations.

Statement made on 09 April 2021 at 2:25pm

CATCHWORDS

MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 Skilled - Regional (Provisional) – skills assessment by the relevant assessing authority – occupation of Accountant (General) – skills assessment provided upon review – decision under review remitted 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 489.221, 489.222; rr 1.15, 2.26

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 to refuse to grant the applicant a Skilled Regional Sponsored (Provisional) visa under s.65 of the Migration Act 1958 (the Act). The applicant was invited to apply for the visa on 18 September 2018 and applied for it on 24 September 2018.

2. The delegate refused to grant the visa on 26 April 2019 on the basis that the applicant did not meet cl.489.222(1) of the Migration Regulations 1994 (the Regulations).

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the material before it.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant satisfies cl.489.222(1) which requires that at the time of the invitation to apply for the visa:

   ·The relevant assessing authority has assessed the applicant’s skills as suitable for their nominated skilled occupation (cl 489.221(1)(a));

   ·The assessment was not for a Subclass 485-Temporary Graduate Visa (cl.489.221(1)(b)):

   ·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 (cl.489.221(1)(c)); and

   ·if paragraph (c) did not apply—not more than 3 years had passed since the date of the assessment (cl.489.221(1)(d)

6. Relevant assessing authority has the meaning given by r.2.26B, which allows the Minister to specify the relevant assessing authority in an instrument in writing. Nominated skilled occupation has the meaning given in r.1.15I, as an occupation of a kind specified by the Minister in an instrument in writing. In this case the relevant instrument is IMMI 16/059.

7. In the present case, the applicant was invited to apply for the visa on 18 September 2018. His nominated skilled occupation was Accountant (General) (ANZSCO 221111) which is a specified in IMMI 16/059. A relevant assessing authority specified in that instrument is CPA Australia.

8. In the application the applicant advised that they had obtained, at time of invitation to apply for this visa; a suitable skills assessment from CPA Australia for their nominated skilled occupation of Accountant. The applicant provided two skills assessments to the Department one dated 16 January 2015, which was more than three years prior to the invitation to apply for the visa, and the other dated 14 December 2018, which was after the date of invitation to apply for the visa. As such the delegate was not satisfied these met the requirements of cl.489.222(1).

9. The applicant has now provided the Tribunal with a skills assessment from CPA Australia, dated 5 February 2016, before the invitation to apply for the visa. This states that his Bachelor of Commerce Accountancy from Murdoch University has been assessed as comparable to an Australian Bachelor degree. The letter states that the applicant is suitable for migration in the nominated skilled occupation of Accountant (General) (ANZSCO 221111). CPA Australia has verified the document provided by the applicant was genuine. The assessment does not appear to have been provided for a Subclass 485 visa. The Tribunal finds that the applicant meets cl.489.222(1)(a) and (b).

10. In this case, the skills assessment does not specify a period of validity. In these circumstances, the cl.489.222(1)(c) does not apply and the applicant is required to meet cl.489.222(1)(d). As the skills assessment was dated 5 February 2016, the Tribunal finds that at the time of the invitation to apply for the visa, not more than three years had passed since the date of the assessment. The applicant meets cl.489.222(1)(d).

11. On the basis of the above findings the Tribunal is satisfied that the applicant meets cl.489.222(1).

12. The appropriate course is to remit the matter to the Minister to determine whether the applicant satisfies the remaining criteria for the grant of the visa.

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 489 visa:

    ·cl.489.222(1) of Schedule 2 to the Regulations

    R. Skaros
    

    Senior Member