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

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).
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.
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.
The applicant appeared before the Tribunal on 3 December 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
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’.
‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.1.03). An occupation is a skilled occupation if:…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh (Migration)

Details

AGLC: Singh (Migration) [2019] AATA 5586
Case: [2019] AATA 5586
Decision Date: 11 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Singh, who sought review of a decision not to grant him a Skilled (Provisional) (Class VC) visa, specifically a Subclass 485 (Temporary Graduate) visa. The core of the dispute concerned whether Mr Singh met the primary criteria for this visa, which relate to his skills and nominated occupation.

The Tribunal was required to determine two key issues. Firstly, whether the applicant had provided evidence of applying for a skills assessment for his nominated occupation by a relevant assessing authority at the time of his visa application. Secondly, and crucially, whether the applicant's skills had been assessed as suitable for his nominated occupation by a relevant assessing authority within the preceding three years.

The Tribunal found that while Mr Singh had provided evidence of applying for a skills assessment for the nominated occupation of Lift Mechanic, satisfying the first criterion, he had not been assessed as suitable for that specific occupation. Instead, the evidence before the Tribunal was a skills assessment for the occupation of Electrical Engineering Technician. Mr Singh contended that this discrepancy arose from errors made by his migration agent, who had nominated Lift Mechanic when Electrical Engineering Technician should have been nominated. However, the Tribunal applied the principle that the applicant must satisfy the criteria as presented in their application, and the assessment provided was for a different occupation than the one nominated.

Consequently, the Tribunal concluded that Mr Singh did not satisfy the criteria for the grant of a Subclass 485 visa. The decision under review, which refused the visa, was therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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? 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’. ‘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. 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. The applicant included a Reference/receipt number TRA 18/999322000 for a skills assessment. 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? 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). There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa. 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. 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Catherine Carney-OrsbornMember

Ratio Decidendi

Legal Principle Established

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