Singh (Migration)

[2019] AATA 5586

Singh (Migration) [2019] AATA 5586 (11 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilraj Singh

CASE NUMBER:  1905650

DIBP REFERENCE(S):  BCC2018/3058064

MEMBER:Catherine Carney-Orsborn

DATE:11 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 11 December 2019 at 3:58pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – skills assessment – Lift Mechanic – application accompanied by relevant evidence  – suitability for nominated occupation – assessment in a different occupation from the nominated occupation – Electrical Engineering Technician – ascertaining the applicant’s intended nominated occupation – explanation for the mistake – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.223, 485.224

CASES
Pavuluri v MIBP [2014] FCA 502

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 on 26 February 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 August 2018. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused the visa because the applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations because he did not provide a skills assessment for the nominated occupation of Life Mechanic.

4. The applicant appeared before the Tribunal on 3 December 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.223 and 485.224 of Schedule 2 to the Regulations. These criteria are concerned with the applicant’s skills in relation to their nominated skilled occupation. The issue in the present case is whether the applicant meets those requirements.

   Had the applicant applied for a relevant skills assessment?

8. Clause 485.223 requires that when the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.

9. ‘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. ‘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). The relevant instrument is Legislative Instrument IMMI 18/051.

10. On the evidence before the Tribunal, the applicant nominated the occupation of Lift Mechanic which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is Trades Recognition Australia.

11. The applicant included a Reference/receipt number TRA 18/999322000 for a skills assessment.

12. As the visa application, when made, was accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant satisfies the requirements of cl.485.223.

    Has the applicant been assessed as suitable for the nominated occupation?

13. Clause 485.224(1) requires that the applicant’s skills for the nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation. In addition, if the assessment is expressed to be valid for a particular period, that period must not have ended: cl.485.224(1A).

14. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.

15. The applicant did not provide a skills assessment to the Department for Lift Mechanic.  The applicant provided to the Tribunal a copy of a skills assessment dated 26 March 2019 in which he had been successfully assessed for the occupation of Electrical Engineering Technician.

16. The applicant at hearing claimed that he had relied on the professional services of a Migration Service.  He claims that they prepared all the documents and nominated the occupation of Lift Mechanic.  He claims he should have nominated Electrical Engineering Technician.

17. The skills assessment which was referred to in the application for the visa was unsuccessful for the nominated occupation of Lift Mechanic.  It was dated 2 October 2018.  The date of the application for the visa was 14 August 2018.  The Department made a decision on 26 February 2019.

18. The applicant obtained a successful skilled assessment for Electrical Engineering Technician dated 26 March 2019. 

19. The applicant provided evidence that he is currently working as an Electrical Worker – Grade 1 in a company that works in the Elevator Industry.  The Tribunal accepts he is working for a company in the Elevator Industry.

20. He claims that he was given the incorrect advice by a Migration Service.  The Tribunal notes that the applicant only obtained a positive skills assessment in a different occupation from the nominated occupation after the failure of the first skills assessment for the nominated occupation.  The applicant may be dissatisfied with the service provided by the Migration Service however there are other avenues open to him for complaint.  On the evidence before it the Tribunal is not satisfied that he simply nominated the wrong occupation and should have nominated the occupation, for which he received a successful skills assessment, after the failure of the skills assessment in relation to the occupation nominated in his application for the visa.  The Tribunal considered the case law available to it set out below.

    “Thus, while not free from doubt, it may be possible to find, as a matter of fact, that the occupation specified in the application form is not (and was not) the nominated occupation. However having regard to the concept of nominating an occupation as a requirement of a valid visa application, and the terms of the application form (‘What is your nominated occupation?’) the circumstances in which this may be open would appear to be narrowly confined. In considering this question, the applicant’s explanation for the mistake would be relevant. Other relevant factors may include the match (or mismatch) between the occupations in question and the applicant’s qualifications and experience, the skills assessment sought, and the relevant assessing authority specified on the application form.[1] It may not necessarily be enough that the applicant ‘made a mistake’ as a result of incorrect advice or lack of legal advice when completing the form.[2] However a finding that the mistake was in the nature of a clerical error may support a conclusion that the nominated occupation was other than as specified in the application form.[3]”

    [1] In obiter comments the Court in KC v MIAC [2013] FCCA 296 (Cameron J, 17 May 2013) at [17] noted that a finding a mistake had been made was open to the Tribunal given an application for a skills assessment in respect of the ‘correct’ occupation had been made shortly prior to the lodgement of the visa application.

    [2] E.g. Chen v MIAC [2011] FMCA 859 (Lloyd-Jones FM, 8 November 2011) and Pavuluri v MIBP [2014] FCA 502 (Mortimer J, 16 May 2014).

    [3] See the example provided in Pavuluriv MIBP [2014] FCA 502 (Mortimer J, 16 May 2014) at [49], of a wrong skills assessment receipt number or reference number entered because of a typographical error.

21. The Tribunal finds that the applicant has not been assessed during the last 3 years by a relevant assessing authority as suitable for the nominated skilled occupation.

22. Therefore the requirements of cl.485.224 are not met.

23. It follows that the applicant does not meet the requirements of cl.485.224.

24. On the basis of the above findings, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Catherine Carney-Orsborn
    Member