Sharma (Migration)

[2021] AATA 2542

Sharma (Migration) [2021] AATA 2542 (12 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Silky Sharma
Mr Dinesh Sharma
Master Moksh Sharma

CASE NUMBER:  2003474

HOME AFFAIRS REFERENCE(S):          BCC2019/3555772

MEMBER:Michelle East

DATE:12 July 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

·cl.189.222(1) of Schedule 2 to the Regulations

Statement made on 12 July 2021 at 11:50am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – no evidence of skills assessment provided with visa application – certificate, pre-dating application, provided to tribunal – decision under review remitted

LEGSLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15I, 2.26B, Schedule 2, cl 189.222(1)

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 applicants Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 16 July 2019. The delegate refused to grant the visas on 3 February 2020.

2. The delegate made the decision on the basis that evidence of a skills assessment was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. The Tribunal was in receipt of further information and was able to make a decision on the papers without the need for a hearing.

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

   CONSIDERATION

5. The issue in the present case is whether the first-named applicant (‘the applicant’) satisfies the criteria in cl.189.222(1).

6. 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.

7. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under reg.2.26B of the Regulations (reg 1.03).  ‘Skilled occupation’ has the meaning given by reg 1.15l of the Regulations (reg 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.

8. Where the criteria require the applicant to have a suitable skills assessment at the time of the invitation to apply for the visa (Subclasses 189, 190 and 489), the relevant skills assessment must exist at the time of the invitation.  The applicant need not have supplied the actual assessment at the time of visa application, as the requirements for making a valid visa application require only a declaration that their skills have been assessed as suitable by the relevant assessing authority.  However, they must supply evidence by the time of decision that the relevant skills assessment existed at the time of invitation to apply for the visa.

9. On 12 July 2021 the Tribunal received a Skills Assessment Certificate from the Australian Institute for Teaching and School Leadership dated 26 June 2018.

10. Based on the evidence provided, the Tribunal finds that, on 11 June 2019, being the date the applicant was invited to apply for a Subclass 189, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation.

11. The Tribunal is satisfied that the Australian Institute for Teaching and School Leadership is the relevant assessing authority specified in the relevant instrument for an Early Childhood (Pre-primary school) Teacher – ANZSCO 241111.  The Tribunal finds that the skills assessment was not for a Subclass 485 visa and specified a period of two years from the date of issue during which the assessment remained valid.  The Tribunal is satisfied that at the date of the visa application, the skills assessment was still valid.

12. Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl.189.222(1) of Schedule 2 to the Regulations.  Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

    ·cl.189.222(1) of Schedule 2 to the Regulations

    Michelle East
    Member